



Class 

Book 





Copyright ~ iZ. 

COPYRIGHT DEPOSrr. 















WATERWAYS 

OF 

NEW JERSEY 


History of Riparian Ownership 

AND 

Control Over the Navigable Waters 
OF New Jersey 




CHARLES S. BOYER; B. S. 

Formerly Member of New Jersey Harbor Commission. 



SiNNiCKSoN Chew & Sons Company, Publishers 
Camden, nIw Jersey 
1915 





Copyright, 1915 
BY Charles S. Boyer 


* 4 

• • • 

S. CHEW & SONS CO., WEST JERSEY PRESS, CAMDEN, N. J. 

JAN 25 1916'^ 

©CU4I.8580 C ^ 

I 


INTRODUCTION 


New Jersey, located so that practically all the over¬ 
land traffic between the New England States and those 
of the Middle and Southern sections must pass over or 
through her territory, possesses a unique position in re¬ 
gard to transportation in the United States. Nine of the 
important transcontinental trunk lines have their tide 
water terminals on the New Jersey side of New York 
bay. Every county in the State has been provided by 
Nature with some means of water transportation, either 
by having a river, an arm of the sea, a canal, or the ocean 
within or along its boundary. 

While investigating the numerous questions connected 
with the ownership of lands under tide water and the 
control over navigable waterways in the State of New 
Jersey, the writer was unable to locate any work in which 
this subject had been adequately and comprehensively 
treated. The titles to lands under tide water in New 
Jersey are at variance with the prevailing custom in 
other States, and of the numerous court decisions upon 
this specific subject very few have any direct application 
to the situation as found in New Jersey. The laws which 
were passed in the several colonies during the ante-Revo- 
lutionary days were based upon the conditions contained 
in the original patents from the English Crown, or the 
subsequent transfers by grants to individuals or coloniza¬ 
tion companies. In the case of several of the Western 
(3) 


4 


INTRODUCTION. 


States in which the title to the land rested in the United 
States, prior to their admittance into the Union, special 
conditions relating to waterways, or the use of waters 
of navigable streams, have been included in their consti¬ 
tutions, and the situation is thus much clarified, but in 
New Jersey it has required long litigation to finally settle 
the status of these lands. 

Aside from the very valuable monograph “Hudson 
County—Its Waterfront Development” by John C. 
Payne, Secretary and Engineer of the Riparian Commis¬ 
sion of the State of New Jersey, all of the information 
relating to New Jersey’s waterways is scattering and 
necessitates a considerable amount of delving to locate 
any particular feature. Among the sources of informa¬ 
tion, the Riparian Commission reports, the several State 
and County histories, the opinions of the Attorneys Gene¬ 
ral, as well as the decisions of the Courts of New Jersey 
and of the United States were found to be the most 
valuable. 

The first question encountered in this study is that 
relating to the history of the grants of lands—upland 
and tidal—and the subsequent reversion of certain of 
these rights to the Crown, upon the surrender of govern¬ 
mental authority by the Proprietors. As this has a direct 
bearing upon the future administration of the lands under 
water and the legal questions involved, a careful study 
of the essential points becomes necessary. For much in¬ 
formation relating to this phase of the early history of 
New Jersey, the New Jersey Archives furnish authentic 
and valuable data and have been fully quoted. 


INTRODUCTION. 


5 


Subsequent control and development of the State’s 
waterways follow in logical order, as well as the point at 
which the Federal Government steps in and exercises 
jurisdiction over certain features of the matter. 

The data contained in the following work was col¬ 
lected by the author solely for his own use while prose¬ 
cuting certain investigations in connection with the water¬ 
ways of New Jersey. This work has been a ‘dabor of 
love,” animated by a desire to see New Jersey make the 
most of her most valuable asset—her waterways. 

Every effort has been made to eliminate errors in the 
quotations and to give due credit for each extract or 
statement contained in the following pages. While the 
author realizes the many shortcomings in this book, it is 
hoped that its publication may be the means of showing 
the needs of a more intelligent and generous policy by 
those in authority towards the development of waterways 
in New Jersey. 

Grateful acknowledgment is due to Mr. L. T. De- 
rousse for the very comprehensive index, which makes it 
possible to quickly locate any particular phase of the 
riparian question discussed in these pages, and also to Mr. 
E. A. Ransom, Jr., for valuable suggestions. 








Table of Contents 


Page 

History of State ownership in riparian lands. 7 

Under royal rule. 45 

State boundary lines. 53 

Rights and Titles to riparian lands. 73 

Early general laws relating to improvements along navigable 

waterways. 91 

Federal authority over navigable waterways. 107 

Canals in New Jersey. 181 

State control over navigable waterways. 149 

Laws relating to Department of Commerce and Navigation, 
Riparian Commission, New Jersey Harbor Commission, 

New Jersey Ship Canal Commission, Pilot Commission 
and Department of Inland Waterways. 163 

(i) 












Plates 


Map of East New Jersey about 1682 showing the 

several land grants. Opposite Page 23 

Old map of New Jersey about 1650. Opposite Page 54 

Map showing route of Morris Canal. Page 137 

Route of Proposed New Jersey Ship Canal. Opposite Page 140 

Port and Harbor of New York . Opposite Page 149 

Port and Harbor of Philadelphia. Opposite Page 157 









Waterways of New Jersey 


History of State Ownership in Riparian Lands 

The territory of New Caesarea, or New Jersey, was 
successively in the hands of the Dutch, Swedes and Eng¬ 
lish, and the imprint of each of these nations is still to be 
found in its customs, laws and names. In order that a 
clear understanding can be had of the basic principles up¬ 
on which the various questions relating to the lands bor¬ 
dering on navigable waterways are founded, it is neces¬ 
sary to study briefly the history oi the country and the 
successive steps of government. Land titles in New Jer¬ 
sey rest upon, or are traced to, the following sources: 

1. Through purchase from the Indians. 

2. From the Swedes. 

3. From the Dutch. 

4. GkDvernor Nicolls grants. 

5. From the Lords Proprietors. 

6. From the East Jersey Proprietors. 

7. From the West Jersey Proprietors. 

Of these, the titles which have, however, stood the 
test of all courts are the ones founded upon patents or 
grants from the Proprietors. All of the others have at 
one time or another been contested, and, while an adverse 
judicial decision has not been given in every instance, the 
absolute and perfect title is lacking. 

( 7 ) 




8 


WATERWAYS OP NpW JpRSpY. 


In 1497-1498 Jean and Sebastian Cabot, then in the 
service of Henry VIL, the King of England, having dis¬ 
covered New Foundland, sailed along the coast of North 
America from Labrador to Florida. They claimed for 
their sovereign the entire territory along which they 
sailed, and this discovery is the basis upon which the Eng¬ 
lish right to proprietorship to the country along the At¬ 
lantic coast is founded. 

Some time afterwards the French, Dutch and Swedes, 
either through discovery, or actual settlement, laid claim 
to part, or all, of the territory now embraced in the State 
of New Jersey. The French claim was founded upon 
the voyage of Verrazano, sailing under the flag of Fran¬ 
cis I. The Dutch laid claim to what is now New Eng¬ 
land and the Middle States through voyages by several 
navigators, principally those under commissions from the 
Greenland Company, the Dutch East India Company and 
the Dutch West India Company, especially the explora¬ 
tions of Henry Hudson and Cornelius Jacobsen May. 
The Swedish claim was founded upon actual settlement 
under the leadership of Peter Minuit, who had formerly 
been Director-General of New Netherland, but had quar¬ 
relled with the Dutch West India Company. 

Such then are the premises upon which the basic 
claims of the several nations competed for a foothold in 
the newly discovered and still undeveloped continent. 
The French never effected any settlements within the ter¬ 
ritory under discussion. The Dutch mission in America 
was trade, and successful trade necessitated peaceful rela¬ 
tions between the parties engaged in trafficking. The 
Swedish settlement was also projected as a profit making 


wate:rways or nrw jrrsry. 


9 


proposition. Such was the constant object of the first 
Dutch and Swedish settlers, with the result that they were 
not prepared to withstand the aggressive attacks made by 
the English Crown, when it finally awoke to the possibili¬ 
ties of the New World. 

Queen Elizabeth, in 1584, by patent, granted to Sir 
Walter Raleigh authority to discover, occupy and govern 
‘demote, heathen and barbarous countries,” not previous¬ 
ly possessed by any Christian prince or people. This was 
entirely ignored by King James when, in 1606, he granted 
new patents to two joint stock companies, respectively 
known as the London, or Virginia, Company, with terri¬ 
torial jurisdiction from 34** to 38° north latitude, and the 
Plymouth, or North Virginia Company, from 41° to 45° 
north latitude. The intervening territory was to go to 
the company which should first plant a self supporting 
colony. The patents of both of these companies, how¬ 
ever, were revoked between 1624 and 1635, the sovereign¬ 
ty being again vested in the King. England was, how¬ 
ever, in the throes of disquietude and even civil war and 
in no position to carry on a colonization policy. How¬ 
ever, with the exit of the Cromwells, Oliver and Richard, 
and the restoration of the Stuart dynasty, the question of 
reward to those who had been firm adherents and active 
participants in the cause of Charles II. became a problem. 
The King turned to the new world as a promising field 
from which to repay his faithful followers. In this con¬ 
nection we need to consider only the grants as far as they 
relate to the province of New Jersey. 


lO 


WATERWAYS OE NEW JERSEY. 


Proprietary Period 

The patent dated March 12, 1664, from King Charles 
11 . to his brother James, the Duke of York, was the first 
enduring legal separation of the soil of what was to be 
New Jersey from the English Crown. This grant in¬ 
cluded all that tract of land extending along the sea coast 
between the west side of the Connecticut River and the 
east side of Delaware Bay, together with all the islands 
between Cape Cod, the Narrows and Hudson River, in¬ 
cluding Martha’s Vineyard and Nantucket. The north¬ 
ern and western boundary was a line from the head of 
the Connecticut River to the head of the Hudson River, 
thence to the course of the Mohawk River and finally to 
the east side of Delaware Bay. 

The original patent, after describing the details of the 
conveyance, continues: 

“togeather with all the lands Islands Soyles Rivers 
harbours Mynes Mineralls, Quarries Woods Mar- 
ishes Waters lakes fishings hawking hunting & fowl¬ 
ing and all other Royalties profitts com’odities & 
hereditaments to the said severall Islands lands & 
p’misses belonging & apperteyning with their and 
every of their app’ten’nces and all our estate right 
title Interest benefit advantage clayme & demand of 
in or to the said lands & p’misses or any parte or 
p’cell thereof and the revert’on & revert’ons re¬ 
mainder & remainders togeather with the yearly & 
other the rents reven’ues & p’fitts of all & singular 
the said p’misses and of every part & parcell there¬ 
of To have & to hold all & singular the said lands 
Islands hereditaments & p’misses with their & every 
of their app’ten’nces hereby given & granted or here- 


WATERWAYS OE NEW JERSEY. 


II 


in before ment’oned to bee given & granted vnto our 
said dearest brother James Duke of yorke his heires 
& assigns forever.”^ 

It will be noted that the patent gave the Duke of York 
absolute authority to govern the province, including the 
right to establish such laws and ordinances as were neces¬ 
sary therefor. The only restrictions to such absolute 
control being that “the said Statutes ordinances & pro¬ 
ceedings bee not contrary to the Dawes Statutes & gov- 
ernm’t of this our Realme of England And saveing & 
reserving to vs, our heirs & Successors” the right of 
receiving and hearing appeals of all persons, “of in or 
belonging to the Territories or Islands aforesaid.” 

It must be further noted that at the time the grant 
from Charles II. was made to the Duke of York, the 
Dutch were in actual possession of the lands covered by 
this patent. However, in 1667, by the treaty of Breda, 
this was ceded to the King of England. 

On June 23, 1664, James, the Duke of York, leased 
for one year to Lord John Berkeley and Sir George 
Carteret, two favorites of the House of Stuart: 

“All that Tract of Land adjacent to New England 
and Lying and being to the Westward of Long Island 
and Manhitas Island and bounded on the East part 
by the Maine Sea and part by Hudsons River and 
hath Vpon the West Delaware Bay or River ex- 
tendeth Southward to the Maine Ocean as farre as 
Cape May at the mouth of Delaware Bay or River 
of Delaware which is in fourty one degrees and 

^ New Jersey Archives (first series) vol. I, p. 4. (Note lack of 
punctuation.) 



12 


WATERWAYS OE NEW JERSEY. 


fourty minutes of ^attitude and Crosseth over thence 
in a vStraight Line to Hudsons River in fourty one 
degrees of Lattitude which said Tract of Land is 
hereafter to be called by the name or names of New 
Cesarea or New Jersey^ and also all Rivers mines 
mineralls Woods fishings hawking hunting and 
fowling and all other Royalties proffitts comodities 
and hereditam’ts whatsover to the said Lands and 
premisses belonging or aperteyning with their and 
every of their apertenences and the Revercon and 
Revercons Remainder and Remainders thereof.” 

The consideration of this lease was ten shillings and 
subject to the rent of a peppercorn. 

On June 24, 1664,^ the above lease was converted 
into a permanent grant, the consideration being the pay¬ 
ment of twenty ^^nobles” of lawful money of England, 
if the same shall be lawfully demanded. 

The difference in the form of the Letters Patent from 
the King to the Duke of York and the latter’s convey¬ 
ance to Lord Berkeley and Sir George Carteret should 
be carefully noted. The patent from the King was an 
absolute indefeasible conveyance in fee simple, while the 
other took the form of a “Lease and Release.” The one 
granted to Berkeley and Carteret stated that it was made 
“in as full and ample Manner as the same is graunted 
to the sayd Duke of Yorke by the before recited Letters 
Pattents” (the King’s grant). The land title received 
by the Lords Proprietors, Berkeley and Carteret, has 

^ So named in honor of Sir George Carteret, formerly Governor of 
the Isle of Jersey. Whitehead, in “East Jersey, under the Proprietors,” 
says, “the people preferred the English name New Jersey and the other, 
New Caesarea, was consequently soon lost.” 

^ New Jersey Archives (first series) vol. I, pp. 10-14. 



WATE^RWAYS OR NRW JERSEY. 


13 


seldom been questioned, in so far as they referred to the 
upland, but the grant of sovereignty, which was also in¬ 
cluded, and of title to the rivers and bays and to the 
lands under water has been declared, by many authorities, 
to have, according to old English law, no substantial legal 
standing. 

These two proprietors on February 10, 1665,^ pub¬ 
lished the now famous ‘‘The Concessions and Agreements 
of the Lords Proprietors of the province of New Caesarea 
or New Jersey, to and with all and every of the adven¬ 
tures, and all such as shall settle or plant there.” This 
was the first constitution of New Jersey and continued 
in effect until 1676. They also appointed Phillip Carteret 
as their representative and as the first proprietary gover¬ 
nor of the territory included within their patent. 

In order that the settlement of the province might be 
more speedily promoted the Concessions contained pro¬ 
vision for the granting of lands to settlers, or prospective 
immigrants, as follows: 

(a) To every person already in New Jersey, or who 
should transport himself thither with the first governor 
before January i, 1665-1666, or meet the governor upon 
his arrival, and “armed with a good Muskett boare twelve 
bulletts to the Pound, with Tenn pounds of powder and 
Twenty pounds of Bulletts, with bandeleers and match 
convenient, and with six months’ provisions for his own 
use,” 150 acres of land, English measure. 

(b) For every able man servant that he should carry 
with him and armed and provided as above, 150 acres of 
land. 


^ New Jersey Archives (first series) vol. I, pp. 28-43. 



14 


WATERWAYS OE NEW JERSEY. 


(c) To every one who should send servants at that 
time, for every able man servant armed and provided as 
above, 150 acres of land. 

(d) For every weaker servant or slave, male or fe¬ 
male, exceeding the age of fourteen years, which any 
one should send or carry, 75 acres of land. 

(e) To every Christian servant, exceeding fourteen 
years of age, after the expiration of their time of service, 
75 acres of land for their own use. 

(/) To every master, or mistress, sailing before the 
first day of January 1665-6 armed and provided as above, 
120 acres of land. 

(g) For every able bodied man servant which he, or 
she, should carry, or send, 120 acres. 

(h) For every weaker servant or slave exceeding 14 
years of age 60 acres. 

(i) For every Christian servant to their own use 60 
acres. 

For the second year, down to January i, 1666-67, 
offer was 90 acres for masters and able bodied servants; 
45 acres for weaker servants and as a servant’s reward. 
For the third year down to January i, 1667-68, the cor¬ 
responding amounts were 60 acres and 30 acres. 

All lands were to be taken up by warrant, from the 
proprietary governor, and confirmed, after survey, by 
the governor and council, under a seal to be provided 
for that purpose. A penny per acre for lands in towns 
or half-penny per acre for lands outside of town bounds, 
according to the quality of the land, was reserved to the 
proprietors annually as quit-rent. These lands were 
called ‘headlands.” 


WATERWAYS OE NEW JERSEY. 


15 


All lands were to be held subject to the condition that 
for the ensuing 13 years, one able bodied servant, or two 
weaker ones were to be maintained upon every 100 acres. 
If these conditions were not fulfilled, the proprietors were 
to have the right after a space of three years, due notice 
having been given, to dispose of the lands to other parties, 
unless the assembly of the colony should judge that, 
owing to poverty or other causes, the grantee was unable 
to fulfill this condition. 

Almost immediately after the patent had been ob¬ 
tained from Charles 11 ., the Duke of York commissioned 
Colonel Richard Nicolls deputy governor of the entire 
territory included in the patent with authority “to per¬ 
form and execute all and every the Powers which are by 
the said Letters Patents granted unto me.” The date of 
this commission was April 2d, 1664-5 the powers 
granted were so absolute that as long as he acted in ac¬ 
cordance with orders and instructions received directly 
from the Duke, all of his lawful acts were undoubtedly 
binding upon his principal. 

According to the commission of Governor Nicolls, his 
jurisdiction included the country which was subsequently 
conveyed to Berkeley and Carteret and frequent contro¬ 
versies arose as to the respective authority of the royal 
governor and the proprietary governor. 

In the middle of April following the date of grant to 
the Duke, Governor Nicolls accompanied an expedition 
sent to America under Admiral Sir Robert Carre to re¬ 
cover the country from the Dutch. The fleet arrived at 
New Amsterdam August 28th and on September 3d the 
Dutch Governor, Peter Stuyvesant, surrendered the fort 
2 


1 6 WATERWAYS OE NEW JERSEY. 

and province under his government. The fleet under 
Carre then proceeded to attack the settlements on the 
Delaware River and these were reduced with little resist¬ 
ance. 

In order that the country over which he had been ap¬ 
pointed deputy governor might be made to produce an 
INCOME eor the Duke, among the first acts of Gov¬ 
ernor Nicolls upon reaching America and, after over¬ 
throwing the Dutch governments in New Amsterdam and 
on the Delaware, was to offer liberal inducements to any 
who would locate within the province. 

Among the terms offered were the following: 

1. The purchases were to be made from the Indian 
Sachems and to be recorded before the Governor. 

2. The purchasers were not to pay anything to 
the Governor for this right to purchase from the 
Indians. 

3. The purchasers were to lay out towns and in¬ 
habit together. 

4. No purchaser was to be permitted to contract 
for himself with any Sachem without the consent of 
his associates or special warrant from the Governor. 

5. The purchasers were to be free from all man¬ 
ner of assessments or rates for five years after their 
town plot was laid out, and after that time they were 
to be liable only to the public rates and payments as 
were established for all inhabitants. 

6. All lands purchased and possessed were to be 
in fee simple and as such could be disposed of as 
the purchaser desired. 

7. Liberty of conscience was guaranteed. 


wate:rways of nfw jfrsfy. 17 

8. The several townships were to have the right 
to make their particular plans and to try all small 
causes within themselves. 

9. Each township was to select its own minister 
and pay him according to agreement. 

10. Each township was to choose its own officers 
both civil and military. 

11. Each man who took the ‘‘Oath of Allegiance” 
and was not a servant or day laborer was admitted 
to enjoy a town lot and to be esteemed “free Men 
of the Jurisdiction” and such rights could not be 
taken away without due process of law. 

Elizabethtown Grant 

Among those who sought the right to purchase and 
settle within the boundaries of New Jersey were six in¬ 
habitants of Jamaica, Long Island, who desired to locate 
on “the River called Cull” (subsequently known as Arthur 
Cull Sound). This petition was dated September 26, 
1664.^ On October 28th, 1664, these petitioners obtained 
a deed from the Indians for certain lands on the Raritan 
River and Arthur Cull, which purchase was confirmed by 
Governor Nicolls December ist, 1664, and is described 
in the grant as follows: 

“* * * * the said Parcel of Land Bounded on 
the South, by a River commonly called the Rariton 
River, on the East by the Sea which parts Staten- 
Island and the Main, to run Northward up after 
Cull-Bay, till you come to the first River which sets 
Westwards out of the said Bay, and to run West 
into the Country twice the length of the Breadth 


^ New Jersey Archives, vol. I (first series), p. 14. 



1 8 WAT^WAYS OS' NE:w JKRSE:y. 

thereof from the North to the South of the afore¬ 
mentioned Bounds, together with all the Lands, 
Meadows, Pastures, Woods, Waters, Fields, Fences, 
Fishings, Fowlings, with all and singular the ap- 
purtences, with all Gains, Profits, and advantages, 
arising or that shall arise upon the said Lands and 
Premises.”^ 

The territory embraced within this grant included the 
towns of Amboy, Rahway, Elizabethtown, Woodbridge 
and Piscataway, the whole of the present Union County, 
part of the towns of Newark and Clinton; a small part 
of Morris County and a considerable portion of Somerset 
County—containing about 500,000 acres. 

Under the agreement between the grantees, the di¬ 
vision of the lands was to be upon the respective sums of 
money which each should contribute. There were to be 
three classes of land owners, known respectively as ‘‘first 
lot men,” “second lot men,” “third lot men.” There were 
eighty associates, of whom twenty-one had “third lot 
rights,” twenty-six had “second lot rights,” and thirty- 
three had “first lot rights.” Each associate was first to 
receive what was known as a “home lot,” after which 
second lot men were to receive double the amount of the 
first lot men, and third lot men treble that of first lot 
men. Only a portion of the entire grant was surveyed 
and divided, the balance being held in common until about 
1699, when by a vote of town meeting it was decided to 
proceed with the division of the remaining portion of 
the unoccupied lands under the Nicolls grant. Surveyors 
were appointed “to Lay out. Divide, and Equally assise 


^ New Jersey Archives, vol. I (first series), p. 17. 



WATERWAYS OR NRW JERSEY. 


19 


all the Lands and meadows within the whole Bounds 
and purchase of Elizabeth Town, to every one Interested 
therein by Right of purchase under the honourable 
General Richard Nicholls, their Several and Respective 
parts and shares of the whole.” Surveys were made and 
about 17,000 acres divided into 171 lots which were duly 
distributed among the associates. This division was 
derisively known as the '‘Clinker Lot Division” and those 
benefitting by it "Clinker Lot Right Men.” 

When Governor Phillip Carteret, who had been ap¬ 
pointed to represent the Lords Proprietors, arrived at 
Elizabethtown in 1665, he found four families already 
located there, claiming title to the land by virtue of the 
grant from the Duke of York’s Governor, Nicolls. He 
in a way acquiesced in the Nicolls grant for shortly after 
settling in Elizabeth he became a "third lot man” in his 
own right and later purchased the interest of John Bailey, 
one of the six original purchasers of the Elizabethtown 
tract. In 1666, Governor Carteret, Ogden and Watson, 
the two latter original grantees, conveyed to Daniel 
Pierce and his associates about one-half of the Elizabeth¬ 
town tract, extending from the Raritan River to the Rah¬ 
way River (called in the deed, Rackaway) and running 
back into the country an indefinite distance. It was on 
this tract that the settlements of Woodbridge and Piscata- 
way took place. It must be noted that while the grant 
from the Duke of York to Lord Berkeley and Sir George 
Carteret is dated June 24, 1664, the grant to the six in¬ 
habitants of Jamaica, Long Island, was not made until 
December i, 1664. Undoubtedly Governor Nicolls did 
not know, nor had he heard officially of the conveyance 


20 WATERWAYS OR NRW JERSEY. 

to Berkeley and Carteret until long after the Elizabeth¬ 
town grant had been made and, under his commission, 
he could only take his orders and instructions from the 
Duke himself. This was the first conflict of authority 
between the representative of the Lords Proprietors and 
the Duke’s Governor. 

The Newark Tract, which was purchased from the 
Indians by deeds^ dated July 7, 1667, and March 13, 1677- 
8, was acquired with the consent of Governor Carteret, 
but fell within the bounds of the Elizabethtown purchase, 
as claimed by the associates. The bounds between New¬ 
ark and Elizabethtown were, however, arranged by mu¬ 
tual agreement between the two towns. The inhabitants 
of Newark, like those of Elizabethtown, refused to recog¬ 
nize the control of the proprietors over the lands within 
their bounds, refusing to patent the land, or pay quit-rent. 
The result was that on December 7, 1672, the Lords Pro¬ 
prietors declared “That the Arrears of Quit-rents of 
Blhabeth Town, Newark, Piscataquay and the two Towns 
of Navesink and all others that have not paid since the 
Year 1670 be paid to our Receiver General in three Years 
from 1673, at the rate of One Halfpenny a Year for 
every Acre, besides their growing rents, until their Ar¬ 
rearages be satisfied and paid.”^ The penalty for failure 
to pay the back quit-rents was forfeiture of the lands. 

This grant and the subsequent transfers and divisions 
of lands claimed thereunder caused a prolonged contro¬ 
versy and much disturbance up to the outbreak of the 
Revolution. Numerous suits of ejectment were brought 


^ New Jersey Archives, vol. VII (first series), p. 30. 
^ New Jersey Archives, vol. I (first series), p. 106. 



WATEJRWAYS 0^^ NEjW JERSEY. 


21 


in the Supreme Court and verdicts first for one side and 
then for the other given, with the final suits in the Court 
of Chancery brought by the proprietors against several 
holders of titles under the Clinker Lot survey and em¬ 
bodied in the famous Elizabethtown Bill in Chancery, 
which was published in 1747 and brought forth The An¬ 
swer to the Elizabethtown Bill in Chancery published in 
1752. At the time of the preparation and filing of the 
Bill in Chancery^ Lewis Morris was governor of New 
Jersey. He was a large land owner in East New Jersey, 
deriving his title thereto from the Proprietors and, there¬ 
fore, would naturally have sided with the Proprietary 
party. By virtue of his office he claimed the right to ex¬ 
ercise the prerogatives of Chancellor, and, had death not 
intervened would have sat in judication on the case. Un¬ 
fortunately for the advocates of the Bill, Governor Bel¬ 
cher, who succeeded Morris, promptly identified himself 
with the Anti-Proprietary party. The troubles which 
were beginning to brew in opposition to the English pol¬ 
icy of oppression and taxation, culminating in the Revo¬ 
lution, however, prevented this case from ever coming to 
a conclusion. No judicial interpretation of the rights of 
the proprietors to the lands included in the Nicolls grant 
was ever handed down. 

Monmouth Patent 

Another grant from Governor Nicolls which has 
played an important part in title litigation in New Jer¬ 
sey was that relating to land at “Sandy Point” (Sandy 

^ Hatfield in History of Elizabeth states that the Bill was purported 
to have been filed April 13, 1745. 



22 WATE^RWAYS OR NRW JRRSRY. 

Hook) and on the Raritan Bay, which became known as 
the Monmouth Patent. 

In 1665 a number of residents of Gravesend, Long 
Island, applied to and obtained permission from the Gov¬ 
ernor of New York to purchase from the Indians certain 
lands in the province of New Jersey, and having pur¬ 
chased the territory from the Sachems, later applied for a 
confirmation of the grant. 

The patent for this grant from Governor Nicolls, 
dated April 8, 1665, defines the boundaries of the same as 
follows: 

“* * * * all that Tract and Part of the main 
Land, beginning at a certain Place commonly called 
or known by the Name of Sandy Point, and so run¬ 
ning along the Bay West North West, till it comes 
to the Mouth of the Raritans River, from there go¬ 
ing along the said River to the Westermost Part of 
the certain Marsh Land, which divides the River in 
two Parts, and from that Part to run in a direct 
South West Line into the woods Twelves Miles, and 
then to turn away South East and by South, until 
it falls into the main Ocean; together with all Lands, 
Soils, Rivers, Creeks, Harbours, etc.”^ 

This conveyance included the entire territory after¬ 
wards embraced in Monmouth County, as well as parts 
of other adjiacent counties, within which the towns of 
Shrewsbury, Middletown and Portland Point were lo¬ 
cated. 

A condition attached to this patent was that the 
grantors should, within a space of three years, manure 


^ New Jersey Archives, vol. I (first series), p. 44. 




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Map of East New Jersey, showing early grants and settlements, 1682 

















watj:rways or nrw jrrsry. 23 

and plant the said premises and settle there at least one 
hundred families, and for carrying out these provisions 
the patentees were to enjoy the lands free from rent, cus¬ 
toms, duties, etc., for a period of seven years and after 
that period the rents or taxes were to be the same as in 
other portions of the colony. They were authorized to 
“erect and build their Towns and Villages in such Places, 
as they in their Discretions shall think most convenient, 
provided that they associate themselves, and that the 
Houses of their Towns and Villages, are not too far dis¬ 
tant and scattering one from another.” This patent also 
gave authority to provide for local self-government by 
allowing them “to make such peculiar prudential Laws 
and Constitutions” as they saw fit, including the erection 
of courts to try all causes and actions for debt and tres¬ 
pass, where the amount did not exceed io£. In accord¬ 
ance with this authority, a legislative body, called a Gen¬ 
eral Assembly, composed of the patentees and delegates 
from the three towns of Middletown, Shrewsbury and 
Portland Point, was held at Shrewsbury on December 14, 
1667. It was purely a local body and claimed jurisdic¬ 
tion only over the territory covered by the above grant. 
It was, however, the first assembly claiming any legisla¬ 
tive power which met in the province. 

Other Grants or Charters 

In addition to the above there were several grants or 
charters issued by the Proprietors, or their representa¬ 
tives, which have played an important part, not only in 
the determination of upland titles, but also in the titles to 
the soil under water. 


24 


WATe:rWAYS NKW JE^RS^Y. 


In 1665 Governor Carteret recognized the govern¬ 
ment of Bergen, which had been settled by the Dutch 
some years previous, under grants from the Dutch West 
India Company, and in 1668 granted a charter to the 
freeholders of the township. The Dutch grants were 
confirmed in the agreement between Governor Nicolls 
and the Director General of New Netherlands, upon the 
surrender of New Amsterdam, upon condition that the 
inhabitants would take the Oath of Allegiance. By the 
charter, the bounds of the township were defined as be¬ 
ginning “at a place called Mordams Meadow, lying on 
the west side of the Hudson; from thence they extended 
in a northwest dyne’ by a ‘three rail fence’ to a place 
called Espartin and from thence to a little creek running 
into the Hackensack River. The Hackensack River was 
then the limit ‘till it comes to the point, or neck of land, 
that is over against Staten Island, or Schooter’s Island, 
in Arthur Cull Bay.” The bound was then the Kill 
van Kull to Constable’s Hook, and thence the ‘lyne’ 
was the Hudson to the starting-point.” This tract in¬ 
cluded about 11,520 acres and the consideration was, in 
lieu of the usual quit-rent of one-half penny per acre, fif¬ 
teen pounds sterling annually. 

Another grant was that to Ide Cornellisen Van Vorst 
dated March 31, 1668,^ for a tract of 100 acres “between 
Haasimus and Jan de Lackers Point.” This tract is de¬ 
scribed in the Act of 1804,^ incorporating The Associates 
of the Jersey Company, who had acquired the same, as 
follows: 


^ New Jersey Archives, vol. XXI (first series), p. 3. 
^Laws of New Jersey, 1804, p. 367. 



WATERWAYS OR NEW JERSEY. 


25 


“bounded on the east by Hudson’s River; on the 
north by the said river, or the bay commonly called 
Harsimus Bay; on the south by the said river, or 
the bay commonly called Communipaw Bay; and on 
the west by a line drawn from a stake, standing on 
the southwest side of the said tract (from which 
stake the flag staff on Ellis’s Island bears south, one 
degree twenty minutes east; and from which the 
chimney of the house of Stephen Vreeland, on Kay- 
wan, bears south, fifty-six degrees ten minutes west; 
and from which the steeple of the Bergen church 
bears north, fifty degrees twenty-five minutes west), 
north twenty-six degrees, thirty minutes east to 
. Harsimus Bay aforesaid; together with the right of 
ferry from the said tract, or parcel of land, across 
Hudson’s river and elsewhere; and the right and title 
of the said Cornelius Van Vorst, under the water 
of the Hudson River and the bays aforesaid, oppo¬ 
site said premises as far as the right of the said Cor¬ 
nelius Van Vorst extends.” 

This grant has played a very large part in the ques¬ 
tion of the ownership of the soil under water along the 
navigable waterways of the State of New Jersey.^ 

Among the other early grants and leases it is only 
necessary to mention the following:^ 

In 1667 to Lawrence Andriessen for land in the tract 
called Minkacque, under the jurisdiction of Bergen, along 
the Hudson River, amounting to 170 acres, subject to 
quit-rent of one penny for each acre to begin March 25, 
1670.^ In 1682 he received a deed for 1,076 acres at 

^ See Associates of the Jersey Company vs. Mayor and Common 
Council of Jersey City, 4 Halsted, 715. 

^See New Jersey Archives, vol. XXI (first series), for abstracts of 
these patents and deeds. 

® East Jersey Records, Liber No. i, p. 10, 



26 


WATERWAYS OR NEW JERSEY. 


‘‘Hackingsack,” the patent for which was in the name 
of Lady Elizabeth Carteret.^ 

In 1668 to Nicholas Verlett of a tract of two hundred 
and sixty-six acres at ‘‘Hoboocken/’ '‘between Hudson 
River, the creek of Hahassemes, the Bay, the Wieh- 
aeckese Creek and the highlands or woods on the north¬ 
west, maintaining there a free passage.”^ 

In 1668 to Captain William Sanford of a tract com¬ 
prising 15,308 acres of upland and meadow, lying south 
of a line drawn from the Hackensack to the Passaic 
Rivers, seven miles north of their intersections. This 
tract became known as the "New Barbadoes Tract. 

In 1669 to Captain John Berry "for land towards the 
head of Pesawack Neck, now called New Barbados, from 
Sandfords Spring six miles up into the country between 
the two rivers.”^ 

In 1669 to Covert Loockermans and his associates of 
several tracts and parcels of lands "on the west side of 
Raritan’s River over against Staten Island.”® 

In 1676 to Richard Hartshorne for several parcels of 
"lands in and about Navesinks, vizt: i, 200 acres in 
Wakecake Neck; 2, 220 acres of Areewinenocke Neck 
along Conescunke Creek; 3, 200 acres on Conescunke 
Neck or Navesinck Bay; 4, 70 acres of meadow along said 
bay, bounded east by Richard Gibbons, west by a little 
bay joining to Changerore; 5, 60 acres of meadow in 
several parcels around the said neck.”® The said Richard 

^ East Jersey Records, Liber No. 4, p. 6. 

“Ibid, Liber No. i, p. 30. 

® Ibid, Liber No. i, p. 33. 

* Ibid, Liber No. 1, p. 46. 

® Ibid, Liber No. 1, p. 48. 

®Ibid, Liber No. i, p. 150. 



wate:rways or new jersey. 


27 


Hartshorne also obtained patents for several tracts in and 
along the Manasquan River in Monmouth County. 

In 1676 to ColonehRewis Morris and his associates in 
the Iron Works at “Navesinck,” now Tinton Falls, of 
3,840 acres of lands on the Shrewsbury "‘between the 
branches of Swimming River and Falls River,” also 60 
acres of fresh meadow south of the larger tract, the whole 
to be called “Tinton Manor.”^ 

In 1682 to Governor Phillip Carteret, Capt. Mathias 
Nichols, Jacop Courtillou and associates received a patent 
for 5,320 acres, a tract called Aqueyquinunke, or the 
Saddle River Tract between the Passaic and Saddle 
rivers.^ 

In 1684-5 to Hans Diderick and his associates from 
Bergen of a tract north of the northernmost line of the 
town of Newark to the Great Falls on the Passaic River. 
This tract was purchased from the Indians in 1679, as 
“Haquequenuck” afterwards spelled “Acquickemunk.” 
(The consideration in this grant is given as fifty pounds 
with an annual rental of fourteen pounds sterling. It in¬ 
cludes the greater part of the present city of Paterson, 
part of Passaic and all of Acquackanonk Township.)^ 

In 1709 the Ramapo Tract, between the Ramapo and 
Saddle Rivers, in Bergen County, was, under warrant 
from Peter Sonmans, “Sole Agent, Superintendent and 
General Attorney and Receiver General of the rest of the 
Proprietors, effectually representing the whole twenty- 
four proprietors,”^ surveyed to Peter Fauconnier and 

^East Jersey Records, Liber No. i, p. 155. 

"Ibid, Liber No. 4, p. 8. 

® Ibid, Liber A, p. 164. 

*Roome, Early Days and Early Survey in East Jersey, p. 31, et seq. 



28 


WATe:rWAYS 01^ NE:w JERSEY. 


associates. The validity of this survey and deed was dis¬ 
puted by the Board of Proprietors on the ground that 
Sonmans did not have sufficient authority to make the 
conveyance. The dissension between the tenants and 
proprietors continued until about 1790, when through 
lease, purchase or compromise the authority and rights 
of the purchasers were acknowledged. 

The New Britain Tract in Essex County to the north¬ 
east of Elizabethtown also conveyed by Sonmans was the 
cause of lengthy legal proceedings by the legitimate pro¬ 
prietors to recover possession of their property. The 
proprietors of West Jersey, as well as those of East 
Jersey, were interested in the validity of this grant. 

While the majority of the grants above noted were in 
strict accordance with the regulations as laid down by 
the Lords Proprietors, there were several the validity of 
which was contested and in some cases the conditions in 
the grants were not subsequently observed. These con¬ 
tentions finally reached the ears of the King and the Duke 
of York. In 1672 the Duke wrote to Governor Lovelace, 
the successor to Governor Nicolls, as follows: 

“I am informed that some contentious Persons 
there, do lay Claim to certain Tracts of these Lands 
(those covered by the Berkeley-Carteret Patents), 
under color of pretended Grants thereof from the 
said Colonel Nicholls, namely one of the first of 
December to John Baker and his Associates (The 
Elizabethtown Grant) ; and another of the 8th of 
April to William Golding and his Associates; both 
which Grants (being posterior to my said Grant of 
the 24th of June) as I am informed are void in Law, 
and therefore I would have you take Notice yourself, 


wate:rways oi!' ne:w je:rsi:y. 


29 


and when Occasion offers, make known to the said 
Persons, and to all others, if any be pretending from 
them, that my Intention is not at all to countenance 
their said Pretentions nor any other of that kind, 
tending to derogate in the least from any Grant 
above-mentioned to the said John Lord Berkeley and 
Sir George Carterett, their Heirs and Assigns.”^ 

Furthermore, in 1672, in a letter from King Charles 
II. to Captain John Berry, Deputy Governor of New Jer¬ 
sey, the King commanded that all inhabitants of the 
province should yield obedience to the laws and govern¬ 
ment established by the Lords Proprietors Berkeley and 
Carteret and recognize their exclusive rights to sell and 
dispose of the lands granted to the Lords Proprietors. 

Notwithstanding these assurances, there were many 
matters which prevented the carrying out of the plans of 
the Lords Proprietors. Lord Berkeley, who had no 
particular interest in America, other than a financial 
one, was anxious to get out of the whole affair without 
loss. When, therefore, the opportunity came, he was 
only too ready to grasp it. 

By deed dated March 18, 1673-74, Lord Berkeley 
conveyed, for iooo£, his moiety, or half portion, of the 
province of New Jersey to John Fenwicke, in trust for 
Edward Byllinge and his assigns, absolutely and in fee 
simple. Fenwicke and Byllinge soon became involved 
in a serious difference as to the land. In the meantime, 
Byllinge, who was a brewer in England, having through 
misfortunes in trade become a bankrupt, his cred¬ 
itors suspected he had some interest in the territory 


^ New Jersey Archives, vol. I (first series), p. 98. 



30 


WATe:rWAYS OF' NEW JERSEY. 


conveyed by Berkeley to Fenwicke. An inquiry was in¬ 
stituted by William Penn as arbitrator and it was dis¬ 
closed that Byllinge was in fact the owner of nine- 
tenths of the conveyance, and Fenwicke of one-tenth. 
That the former’s creditors might derive advantage 
therefrom a deed was executed February 4, 1674-5,^ 
conveying the nine-tenths interest to three trustees, Wil¬ 
liam Penn, Gawin Lawrie and Nicholas Lucas as “re¬ 
leasees to uses” for the benefit of his creditors. 

Fenwick resisted this award, but finally, on March 
23, 1682, relinquished his claim to any further right and 
estate in the moiety of New Jersey, including expressly 
the tenth reserv^ed to him by the “release to uses,”^ ex¬ 
cept that tract known as Fenwicke’s Colony containing 
150,000 acres. Fenwicke divided his tract of land into 
three allotments—the Salem, the Alloways and the 
Cohanzic—the exact bounds of which are not defin¬ 
itely known. The boundary lines of the entire tract, 
however, were, as subsequent investigations and com¬ 
parisons of deeds for lands which Fenwicke sold, sub¬ 
stantially as follows: 

Oldman’s Creek on the north, Cohansey Creek on 
the south, the present Cumberland County line on the 
east and the Delaware River on the west. 

Fenwicke, in carrying out plans for the development 
of his share of the Berkeley purchase, had, before leaving 
London, borrowed considerable sums of money from 
John Eldridge and Edmund Warner, and as security for 
the loan had by indenture dated July 17-19, 1675, given 


^ Smith, History of New Jersey, p. 79. 

“New Jersey Archives, vol. I (first series), p. 370. 



wati:rways op new jersey. 31 

them a lease for 1000 years of all unsold lands in his 
tenth, with the right to sell so much of the land de¬ 
mised as would reimburse them for the money advanced. 
Under this power, the lessees, Eldridge and Warner, sold 
to Penn, Lawrie and Lucas all of the lessor’s rights and 
title, excepting the claims of those who, in 1675, had 
settled in the Fenwicke tenth under deeds from him 
prior to the lease. 

In 1672 war broke out between England and Hol¬ 
land, and during the hostilities a Dutch naval force 
seized New York (July 13, 1673), and re-established 
their authority over the territory which they had lost 
when the English fleet, under Sir Robert Carre, on Sep¬ 
tember 3, 1664, took New Amsterdam. The fall of New 
York carried with it all the English possessions in New 
York and New Jersey. This territory remained under 
the jurisdiction of the Dutch until the Treaty of West¬ 
minster on February 9, 1674, in which the sovereign 
Dutch States-General formally ceded to the King of 
England all of the New Netherlands. In this way the 
territory again came into possession of the King of Eng¬ 
land as sole proprietor. 

There being some doubt as to whether the patents 
previously made to the Duke of York and his release 
to Berkeley and Carteret were in force, since all the 
peace negotiations were directly with the English sov¬ 
ereign, a new patent was issued by Charles 11 . to James 
Duke of York, on June 29th, 1674, and on July 28th- 
29th, 1674, the latter by “Lease and ReeEase'" granted 
a portion of the same to Sir George Carteret.^ The ter- 


^ New Jersey Archives, vol. I (first series), pp. t/Jt-tA't. 

3 



32 


WATERWAYS OE NEW JERSEY. 


ritory which he transferred was, however, only that por¬ 
tion which afterwards becarne known as East Jersey, as 
will be seen by the description contained in the indenture. 

“All that Tract of Land adjacent to new England 
and lying and being to the westward of long Island 
and Manhatam Island and bounded on the East 
parte by the said Maine Sea and parte by Hudsons 
River and extends Southward as far as a certaine 
Creek called Barnegatt being aboute the middle be- 
tweene Sandy point and Cape May and bounded 
on the West in a Streight line from the said Creek 
called Barnegatt to a certaine Creek in Delaware 
River next adjoyneing to and below a certaine 
Creek in Delaware River called Rankokus Kill and 
from thence up the said Delaware River to the 
Northernmost branch thereof which is fforty one 
Degrees and fforty minutes of Latitude and on the 
North crosseth over thence in a streight line to 
Hudsons River in fforty One Degrees of Latitude 
which said Tract of land is hereafter to bee called 
by the name or names of new Ceserea or new Jer¬ 
sey, and alsoe all Rivers Mines mineralls woods fish¬ 
ings hawkins hunting and fowling, and all Royalties 
proffitts commodities and hereditaments whatsoever 
to the said Lands and premisses belonging or apper- 
teyning with their and every of their Appurten’nces, 
and the Reverc’on and Reverc’ons Remainder and 
Remainders thereof.” 

The consideration in this grant was the same as 
called for in the deed of 1664. 

It will be noted that there is no mention of Lord 
John Berkeley in this patent, for the obvious reasons 
that he had, as above noted, disposed of his moiety, or 


WATI^RWAYS OR NRW JKRSRY. 33 

half portion, of the original grant. The holders of 
Berkeley’s portion of the province went ahead as if their 
title had not been affected by the Dutch conquest and the 
Treaty of Westminster. It was not until several years 
later that the Duke of York confirmed the title of the new 
proprietors to West Jersey. 

On June 13, 1674, fourteen days before the date of 
the patent to the Duke of York, Charles 11 . caused a let¬ 
ter to be written in which he confirmed and recognized 
the grant subsequently made to Sir George Carteret (the 
remaining original Proprietor) and commanding all per- 
sonSi* 

“to yield obedience to the Laws and Government 
which are or shall be there established by the said 
Sir George Cartarett, who hath the sole Power 
under us, to settle and dispose of the said Country, 
upon such Terms and Conditions as he shall think 
fit.”i 

During the joint ownership of Berkeley and Car¬ 
teret there had been no attempt to make a territorial 
division of the grant from the Duke of York, and it is 
not certain that any had been contemplated. All of the 
property was held as tenants in common. The grant of 
June 13th, 1674, to Carteret, however, indicated that 
there must have been some general understanding as 
to a division line between the original proprietors, or 
their successors. The assignment of the Byllinge share 
of the Berkeley claim to his three trustees who, in the 
exercise of their trust, had succeeded in getting many 
of the Byllinge creditors to accept lands in satisfaction 


^ New Jersey Archives, vol. I (first series), p. 154. 



34 


WATERWAYS OE NEW JERSEY. 


of their claims, brought in new proprietors. In addition, 
the lease of the Fenwicke tenth had still further com¬ 
plicated the situation and called for a partition of the 
province. In order to accomplish this more readily, 
Eldridge and Warner, as lessees of Fenwicke, conveyed 
the “Fenwicke Tenth” to the Byllinge trustees. The 
entire province was thus in control of Sir George Car¬ 
teret, William Penn, Gawin Lawrie, Nicholas Lucas and 
Edward Byllinge (as regards any equity he might 
have). On July i, 1676, the now famous Quintipartite 
Agreement ^ was signed by these five proprietors and 
the province of Nova Caesarea, or New Jersey, was di¬ 
vided into East Jersey, under the proprietorship of Car¬ 
teret, and West Jersey, held by the trustees of Byllinge. 
After this division the Fenwicke share was reconveyed to 
Eldridge and Warner in fee. This reconveyance com¬ 
pletely cut of! any reversionary claim which Fenwicke 
might have had. 

By grant dated August 6, 1680, the Duke of York 
confirmed title to the lands which he had by grant of 
1664 conveyed to Lord John Berkeley and which had 
subsequently been first sold to John Fenwicke and Ed¬ 
ward Byllinge and by them placed in trust or transferred 
to William Penn, Gawin Lawrie, Nicholas Lucas, John 
Eldridge and Edmund Warner. 

This grant also contained the following: 

“Together with all Islands Bayes Rivers Waters 
Forts Mines Quarries Royalties franchises and ap¬ 
purtenances whatsoever to the same belonging or in 


^ New Jersey Archives, vol. I (first series), pp. 205-219. 



wati:rways or new jersey. 


35 


any wayes appertaining And Add the Estate Right 
Title Interest Reverc’on Remainder Claime and De¬ 
mand whatsoever As Weed in Law as in Equity of 
him the said James Duke of Yorke of in unto or out 
of the same or any part or parcell of the same As 
Aeso the free Vse of all Bayes Rivers and Waters 
Leading unto or lying between the said p’misses or 
any of them In the said parts of America for Navi¬ 
gation ffree Trade ffishing or otherwise.” 

In this deed, while title to the lands in West Jersey 
was confirmed in the fullest terms to Penn, and his as¬ 
sociates, the authority of government was expressly 
conveyed to Byllinge, his heirs and assigns. This grant 
of power was strenuously resisted by the proprietors 
resident in New Jersey and led to constant trouble be¬ 
tween the deputy governor of Byllinge and the General 
Assembly. 

On March 3, 1676-77, one hundred and fifty-one Pro¬ 
prietors, Freeholders and Inhabitants of the Province of 
West New Jersey agreed upon and adopted ‘‘The Con¬ 
cessions and Agreements of West Jersey.” This instru¬ 
ment gave a greater amount of local self-government than 
had any previous document, and aside from certain weak¬ 
nesses of administration has been commended by his¬ 
torians generally. 

The questions of lands occupy a prominent place in 
the West Jersey Concessions. Persons desiring to take 
up land in West Jersey must have “the consent of one 
or more of any of the Proprietors of the said Province, 
attested by a Certificate, under his or their Hands and 
Seals.” The allotments were somewhat smaller than 


36 wate:rways of new jersey. 

those granted in the Concessions of the Lords Proprie¬ 
tors and the terms were less liberal, if the settlers de¬ 
layed. The quit-rents were paid to the individual pro¬ 
prietors and not, as in East Jersey, to a proprietary office. 
The payment of this rent, being a private business trans¬ 
action, little is known as to whether any demands were 
made therefor. 

Byllinge’s trustees disposed of two considerable 
shares of his original grant to his principal creditors. 
One whole tenth of West Jersey went to a company of 
creditors from Yorkshire, headed by Thomas Hutchin¬ 
son, and another tenth portion to a group of Quakers 
resident in London. Commissioners composed of James 
Wasse, Richard Hartshorne and Richard Guy were sent 
to the Delaware, to make surveys of the respective 
share, or proprieties. The next large sale of Byllinge 
land was made in satisfaction of debts to five Irish 
Friends. The Yorkshire tenth selected lands reaching 
from the Falls of the Delaware (vicinity of Trenton), 
to “Rankokus” Creek; the London Company chose a 
portion of territory lower down the Delaware, in the 
vicinity of Arwames (Gloucester Point), but finally, 
by agreement, these two groups decided to act together 
in settling a town, and a place was selected called Beverly, 
afterwards changed to Bridlington and finally Burling¬ 
ton. In consequence of this agreement the London 
settlers took lands nearer the places of principal settle¬ 
ment. The Irish tenth arrived on the Delaware River 
in 1681 and took the land reaching from Pensaukin to 
Timber Creeks.^ 


^ Mickle’s Reminiscences of Old Gloucester, p. 34. 



WATERWAYS OE NEW JERSEY. 


37 


There appeared, however, a factor to disturb the 
proper sale of the lands of the several proprieties in 
the person of Byllinge. Notwithstanding the fact that 
all of his property had been placed in the hands of trus¬ 
tees for the benefit of his creditors, and before these 
trustees had resigned their trust, he undertook to grant 
lands in his own name. His action in this respect was 
clearly illegal, and the council of proprietors promptly 
voted such deeds insufficient for the issue of warrants of 
survey.^ 

As having a bearing on the rights of government, the 
coming of Doctor Daniel Cox into the affairs of West 
New Jersey played an important part in the subsequent 
political policy of the colony. Upon the death of Ed¬ 
ward Byllinge, his estate became vested in his two 
daughters, as heirs-at-law, Gracia married to Benjamin 
Bartlett and Loveday, who died single. Bartlett had, 
through a deed from Byllinge, dated January 7, 1680, 
become seized of five whole shares. These five shares 
were transferred to Dr. Daniel Cox, by deed dated Feb¬ 
ruary 18, 1686, who by several subsequent deeds also 
obtained all of the rights and titles of the several direct 
Byllinge heirs. By letter dated September 5, 1687, to the 
Council of Proprietors of West New Jersey, that being 
the only organized representative body within the pro¬ 
vince, Dr. Cox, with the consent of the Proprietors in 
England, proclaimed himself governor of West New 
Jersey. He based his claim to this office upon his pur¬ 
chase of the Byllinge proprieties in West New Jersey, 
together with all the titles and prerogatives attached 


^Minutes of the Council of Proprietors of West Jersey, 1688. 



38 wate:rways or new jersey. 

thereto. Dr. Cox played a prominent part in the boun¬ 
dary line question between East and West Jersey. In 
1691 Cox transferred his interests in both East and 
West New Jersey to a company of gentlemen in Lon¬ 
don, who adopted the title and name of The West New 
Jersey Society. This Society disposed of numerous 
tracts of land and many deeds come down through this 
source.^ 

During all this later period New York was under 
the control of the Duke of York, who, through his rep¬ 
resentative, Governor Andros, claimed certain jurisdic¬ 
tion over New Jersey. In many and numerous ways he 
continually harassed the settlers therein and the gov¬ 
ernment set upi under the authority of the Proprietors 
thereof. Protests were made to the Duke against some 
of these conditions, especially against the payment of 
customs and other duties. So vigorous were these pro¬ 
tests that the Duke referred the entire question of his 
rights in the premise to Sir William Jones, formerly At¬ 
torney-General of England, but now one of his greatest 
opponents. It is interesting to note the following opin¬ 
ion thereon: 

28 July 1680. 

‘T doe hereby humbly certify that having heard 
w’t hath beene insisted upon for his Roy’ll High- 
nesse to make good y’e legallity of y’e demand of 
Five p’r’cent from y’e inhabitants of New Jersey: 
I am not satisfyed (by anything that I have yet 
heard) that y’e Duke can legally demand that or 
any other duty from y’e inhabitants of those lands. 
And y’t w’ch makes y’e case the stronger against 


^ See New Jersey Archives, vol. II (first series), p. 4. 



wate:rways new jersey. 


39 


his R’ll H’ss is, that these inhabitants clayme und’r 
a graimt from his Roy’ll Highnesse to y’e Lord 
Berkeley and Sir George Cartarett in w’ch graunt 
there is noe reservas’on of any proffitt or soe much 
as of Jurisdic’on.” 

Sir George Carteret, one of the original Lords Pro¬ 
prietors, died in 1679, and by his will his province was 
devised to trustees to be sold for the benefit of his 
creditors. Plis widow. Lady Elizabeth Carteret, was 
left executrix of his estate and guardian to his grand¬ 
son and heir. Sir George Carteret, and devised to six 
trustees, or their heirs, all of his property in East Jersey 
for the benefit of his creditors, with full power to sell, 
or dispose of, the same in such a manner as would best 
satisfy the claims against his estate. The death of the 
Lord Proprietor was followed by no immediate change 
in the state or management of affairs in the province. By 
deed dated September loth, 1680,^ which was, however, 
not signed until the following October i6th, the grandson 
and heir obtained a release from the Duke of York of 
all the lands of which his grandfather became seized by 
the Quintipartit Deed in 1676. 

In pursuance of their instructions to sell or dispose 
of the lands as above noted, his trustees endeavored to 
find a purchaser by private application, but no private 
purchaser presenting^ it was decided to expose the en¬ 
tire proprietary interest at a public sale to the highest 
bidder. William Penn and eleven associates became the 
purchasers of East Jersey for the sum of £3400. This 
purchase was acknowledged and confirmed by lease and 


^ New Jersey Archives, vol. I (first series), p. 337. 



40 


WATERWAYS OE NEW JERSEY. 


release from Elizabeth, widow of Sir George Carteret, 
and his trustees, dated February ist and 2d, 1681-2.^ 
Not long afterwards each of these purchasers sold one- 
half of his respective rights to a new associate, thus 
making the total number of proprietors twenty-four. In 
order to obtain absolute title and release of all or any 
claims or demands, a deed was made by the Duke of 
York to the twenty-four proprietors under date of March 
14, 1682.^ As further strengthening their hold upon the 
province, the King on November 23, 1863,^ issued a letter 
in which this grant of the Duke of York to the Proprie¬ 
tors was fully confirmed and his Majesty also decreed 
that all persons concerned in the province should yield 
all due obedience to the laws and government of the 
grantees, their heirs and assigns, as absolute proprietors 
and governors thereof. In 1683 the twenty-four pro¬ 
prietors issued ‘‘The Fundamental Constitution for the 
Province of East New Jersey in America.” 

This was the' last grant from the Duke of York of 
lands in New Jersey. From now on these matters were 
in the hands of the proprietors. Each province had many 
and different proprietors, who advanced separate schemes 
and interests. The several factions opposed each other 
in the choice of governors and refused to abide by the 
selections or listen to moderate counsel. Peace and har¬ 
mony were lacking and disorder ran riot. Added to the 
internal disorders was the death of Charles II. in 1684 
and the accession to the throne of James, Duke of York. 
As James II., he had very little regard for the contracts 

^New Jersey Archives, vol. I (first series), p. 366. 

^ Ibid, p. 383. 

* Ibid, p. 440. 



WATE^RWAYS OR NRW JRRSRY. 


41 


and charters granted by the same James, Duke of York. 
He immediately began planning to annul all of his pre¬ 
vious grants and conveyances, especially those containing 
governmental concessions. Quo warranto proceedings 
were started in 1687 ^7 the Attorney General on the 
ground that it was prejudicial ''that such independent 
governments” (New Jersey, Maryland and the Caro- 
linas) "be kept up and maintained without a nearer and 
more immediate dependence on your Majesty.” 

Andros, who had previously been commissioned gov¬ 
ernor of New York was in 1686 appointed Governor 
Captain General and Vice-Admiral of New England and 
two years later New York and New Jersey were also 
placed under his jurisdiction. Finding resistance use¬ 
less, the Proprietors determined to surrender their gov¬ 
ernment, striving only to have their rights to land re¬ 
spected. This new arrangement, however, did not last, 
since the overthrow of the Stuart dynasty placed William 
and Mary on the throne and resulted in the recall of 
Andros. Matters drifted along with the Proprietors 
exercising such local government as they were able, until 
1694 when the question of the right of the Governor of 
New York to control the customs houses of the province 
of New Jersey again became acute. With no strong local 
government and with a bitter struggle between the pro¬ 
prietory and royal authorities, it became evident about 
1699 that the only feasible plan was to abandon all claim 
to governmental power. Overtures were made to the 
Crown to surrender the right of government, if their title 
to property was secured and some minor concessions 
granted. 


42 


WATERWAYS OE NEW JERSEY. 


In 1702 the surrender of the rights of government 
was made in a lengthy petition which was signed by 
twenty-six proprietors of East Jersey, and thirty-two pro¬ 
prietors of West Jersey. This petition was originally 
submitted to King William in Council January 29th, 
1701-2, but the King having died before its execution de¬ 
layed the final acceptance by the Crown until A'pril 17, 
1702. The form of surrender was as follows : 

'‘The present Proprietors of the said Prov¬ 
inces of East Jersey and West Jersey for the Consid- 
erac’ons and to the intent aforesaid Have Surrender¬ 
ed and yielded up And by these presents for Us & 
our heirs do Surrender & yield up unto Our Sove- 
raigne Lady Anne by the Grace of God Queene of 
England Scotland France and Ireland Defend’r of 
the ffaith &’c. her heirs & Successors All those the 
said Powers & Authorityes to correct punish pardon 
govern & Rule all or any of her Majestie’s Subjects 
or others who now inhabit or hereafter shall adven¬ 
ture into or inhabit within the said Provinces of 
East Jersey & West Jersey or either of them & also 
to nominate make constitute ordain & Confirm any 
Laws Orders Ordinances and directions & Instru¬ 
ments for those purposes or any of them And to 
Constitute Nominate Appoint revoke discharge 
change or alter any Governour or Govenours Offi¬ 
cers or Ministers which are or shall be appointed 
made or used within the said Provinces or either of 
them and to make ordain & establish any Orders 
Laws directions Instruments Forms or Ceremoynes 
of Government and Magistracy for or concerning 
the Government of the Provinces aforesaid or either 
of them or on the Sea in going & coming tO' or from 
thence or to put in Execuc’on or Abrogate Revoke 


WATERWAYS OR NRW JKRSKY. 


43 


or change such as are already made for or concern¬ 
ing such Government or any of them! And also All 
those the said Powers and Authorityes to Use and 
exercise Martiall Law in the Places aforesaid or 
either of them And to Admitt any person or persons 
to trade or traffic there and of Encountring Repell¬ 
ing and resisting by force of Arms any P’son or 
P’sons attempting to inhabit there without the Li¬ 
cence of Us the said Proprietors our heires or As- 
signes And All other the Powers Authoritye Priv- 
iledges of or concerning the Governm’t of the Prov¬ 
inces aforesaid or either of them or the Inhabitants 
thereof which were granted or menc’oned to be 
granted by the said recited Letters Patent and every 
of them/’i 

In giving up their right of government, owing to the 
difficulties of maintaining order and enforcing the de¬ 
cisions of the courts, the Proprietors were intent upon 
preserving their pecuniary interests. The chaotic condi¬ 
tion into which the province was fast drifting would tend 
to confirm this object, especially as the instructions to the 
first royal governor carefully guarded the proprietary 
rights to the soil and to the enforcement of the quit-rents. 

This ended the proprietary government in New Jer¬ 
sey and, while the proprietors retained their respective 
land interests, these could not by any arguments include 
the prerogatives, either actual or assumed, which had 
come to them in their capacities as Lords Proprietors. 


^New Jersey Archives, vol. II (first series), pp. 458-459. 










UNDER ROYAL GOVERNMENT 


Upon the surrender of the government of New Jersey 
by the Proprietors, Queen Anne appointed Lord Corn- 
bury governor of both New York and New Jersey. Un¬ 
der the new plan East and West New Jersey were fully 
united and incorporated together as one province. The 
commission and instructions which Cornbury received^ 
formed the constitution and government of the province, 
until its declaration of independence. Among the num¬ 
erous instructions given to the governor was the pro¬ 
vision that no person should be capable of being EEECTEd 
a representative to the General Assembly who did not 
have one thousand acres of land in his own right within 
the division for which he was to be chosen; and that no 
freeholder should have the right to vote for such rep¬ 
resentation who did not own in his own name one hun¬ 
dred acres. ^ 

By this provision practically only the proprietors could 
serve in the assembly and only a small percentage of the 
population could vote for a representative therein. 

The instructions contained special provisions for the 
protection of the title to lands, and among these were the 
following: 

36. * * you shall propose to the general 

assembly of our said province, the passing of such 
act or acts, whereby the rights and property of the 
said general proprietors, to the soil of our said pro¬ 
vince, may be confirmed to them, according to their 

^ New Jersey Archives, vol. II (first series), pp. 489, 506. 

^New Jersey Archives, vol. II (first series), pp. 510-511. 

(45) 



46 


WATERWAYS OR NRW JERSEY. 


respective rights and titles; together with such quit- 
rents as have been reserved, or are or shall become 
due to the said general proprietors, from the inhab¬ 
itants of our said province; and all such privileges as 
are express’d in the conveyances made by the said 
duke of Yorke, excepting only the right of govern¬ 
ment, which remains in us : And you are further to 
take care, that by the said act or acts so to be passed, 
the particular titles and estates of all inhabitants of 
that province and other purchasers claiming under 
the said general proprietors, be confirmed and set¬ 
tled as of right does appertain, under such obliga¬ 
tions as shall tend to the best and speediest improve¬ 
ment or cultivation of the same.”^ 

37. “You shall not permit any other person or 
persons besides the said general proprietors, or their 
agents, to purchase any land whatsoever from the 
Indians within the limits of their grants.”^ 

38. “You are to permit the surveyors and other 
persons appointed by the forementioned general pro¬ 
prietors of the soil of that province, for surveying 
and recording the surveys of land granted by and 
held of them, to execute accordingly their respective 
trusts: And you are likewise to permit, and if need 
be, aid and assist such other agent or agents, as shall 
be appointed by the said proprietors for that end, to 
collect and receive the quit-rents which are or shall 
be due unto them, from the particular possessors of 
any parcels or tracts of land from time to time.”^ 

39. “You shall transmit unto us, and to our com¬ 
missioners of trade and plantations, by the first op¬ 
portunity, a map with the exact description of our 
whole territory under your government, and of the 
several plantations that are upon it.”^ 

^ New Jersey Archives, vol. II (first series), p. 517. 

*New Jersey Archives, vol. II (first series), pp. 517-518. 



WATERWAYS OR NRW JRRSRY. 


47 


Of the above instructions the first was carried out by 
the laws of December i, 1703, and April i, 1709.^ 

However, soon after Cornbury arrived in New Jer¬ 
sey, the factional differences between the proprietors and 
anti-proprietary parties sprang up. This was due largely 
to the assembly, which was under control of the pro¬ 
prietary party, refusing to give the governor a sufficiently 
large amount for the support of himself and his subor¬ 
dinates. Therefore, when the first Assembly prepared 
the famous “Long Bill’’^ (“An Act for the settling and 
confirming the Estates of all Proprietors and Purchasers 
of Land within this Province of New Jersey”), which 
would have, by legislation, forever settled the claims 
based upon the Nicolls grant and the Elizabethtown pur¬ 
chase in favor of the proprietors, Cornbury prorogued it 
before final action could be taken. 

The next Assembly promptly reduced the qualifica¬ 
tions necessary to vote for representatives to 100 acres of 
land. This was in direct variance with Cornbury’s in¬ 
structions, but it was a full year before the objections of 
the Crown were received in New Jersey. This and other 
acts, however, cemented and strengthened the anti-pro¬ 
prietary party, since by these measures the small land 
owner had a voice in the legislative councils of the Prov¬ 
ince. 

At the same time certain minority proprietors resid¬ 
ing in England, and known as the “English Proprietors,” 
succeeded in having their representatives appointed and 
recognized by Cornbury to act as their agent in New Jer- 

^ Paterson’s Laws of New Jersey, pp. i and 2. 

^New Jersey Archives III (first series), pp. 17-19; pp. 28-35 and 
pp. 54-60. 

4 



48 


WATERWAYS OE NEW JERSEY. 


sey, with authority to sell proprietary lands, appoint a 
surveyor general and settle accounts with all quit-renters. 
Under this arrangement numerous grants of lands were 
made, such as the “Ramapo Grant” and the “New Brit¬ 
ain Grant,” already noted. The result of this arrange¬ 
ment was a constant and continued source of trouble be¬ 
tween the proprietors and those who had taken up lands 
in the province, and played a very important part in the 
political situation. 

When, in 1715, the Supreme Court decided in the case 
of Vaughn v. Woodruff against the Elizabethtown claim¬ 
ants, many of them proceeded to buy up the proprietary 
rights to the several tracts still held by the proprietors in 
common and to have their lands appropriated to them un¬ 
der the proprietary agreement for apportioning dividends. 
This action was not because they believed the decision to 
be a just one, nor with the idea of abandoning their hope 
of having the case reopened at some future time, but to 
prevent being dispossessed of the property claimed under 
the Nicolls’^ grant. 

Boundary Line Between East and West New Jersey 

About this time the boundary line between East and 
West Jersey again became an active controversy. There 
was much land in each division of the province held in 
common by the respective proprietors, and the location of 
the dividing line between the two divisions would settle 
the question as to titles of these unpatented lands. The 
purchaser had no absolute certainty as the rights of the 

^ Elizabethtown Bill in Chancery and Answer to Elizabethtown Bill 
in Chancery. 



wate:rways or new jersey. 49 

proprietors, fromi whom he might buy land, to give a clear 
title thereto. 

Under the original grant to Berkeley and Carteret the 
western boundary of the province extended from 

‘‘Cape May at the mouth of Delaware Bay and to 
the Northward as farre as y’e Northermost Branch 
of the said Bay or River of Delaware which is in 
fourtie one degrees and fourtie Minutes of Lati- 
tude.^i 

In the Quintipartite Agreement, after reciting that 
Berkeley was entitled to the “moyety or half part” of the 
province, provided that the dividing line shall extend 

“Southward by a straight and direct Line drawne 
from the said North Partition Poynt Southward 
through the said Tract of Land unto the most South¬ 
wardly poynt of the East syde of Little Egg Har- 

bour.”2 

On June 30, 1686,^ the Council ordered the line 
should be laid out, but the question immediately arose 
as to what should be considered the “North Partition 
Poynt” which, according to the original deed, was to be 
in latitude 41° 40.' A careful study of the topography 
of the province revealed the fact that there was no point 
on the Delaware River proper which was near this lati¬ 
tude. Seeing the possibilities of differences, the deputy 
governors of the two provinces together with several 
proprietors, in September, 1687, entered into a formal 
agreement to submit the question of the boundary line to 


^ New Jersey Archives, vol. I (first series), p. 12. 

^ New Jersey Archives, vol. I (first series), p. 213. 

® New Jersey Archives, vol. I (first series), pp. 517-519. 



50 


WATERWAYS OE NKW JERSEY. 


arbitration, the award to be made upon a basis of, as near¬ 
ly as possible, an equal division of New Jersey, and the 
Deputy Governor and Proprietors of West Jersey exe¬ 
cuted a bond for 5,000 Pounds, of lawful money of the 
Provinces, to stand by the award of the arbitrators, John 
Reid and William Emley.^ 

In 1687, George Keith, the surveyor-general of East 
Jersey, ran the line from the north side of the mouth, or 
inlet, of Little Egg Harbor to the south branch of the 
Raritan River near Three Bridges. The line so laid out, 
however, gave so much dissatisfaction to the West Jersey 
proprietors that it was not extended any further. Not¬ 
withstanding the objections raised to this line Governor 
Barclay for East Jersey and Governor Cox, who, as al¬ 
ready noted, claimed full governmental authority over 
West Jersey, made a new agreement the next year (1688) 
for the division of the province. This agreement adopted 
the Keith line as far as surveyed and then ran in a broken 
line to the bounds of the province, or until it reached 41“. 
This time the opposition came from the East Jersey pro¬ 
prietors, since it gave West Jersey more than its share of 
land. 

The controversy dragged along without any definite 
results until on March 27, 1719, the assembly passed an 
“Act for running and ascertaining the line of partition, 
or division, between the eastern and western division of 
the province of New Jersey, and for preventing disputes 
for the future concerning the same •****” ^Besides 
providing for the line as designated in the “Quintipar- 
tite Agreement,” provision was made to reimburse 


^ New Jersey Archives, vol. I (first series), p. 522. 
“Paterson’s Laws of New Jersey, p. 7. 



WATE^RWAYS 0^ NEW JERSEY. 


51 


either set of proprietors by an exchange or transfer of 
unimproved and unoccupied lands; and the recording 
of all deeds with the surveyor-general of the respective 
divisions, within two years in the case of residents and 
three years in non-resident, under penalty of said grants 
being null and void. 

The Commissioners to run the line were selected, 
three by the Governor of New York, three by the Gov¬ 
ernor of New Jersey, to represent the East Jersey pro¬ 
prietors, and two to represent the West Jersey proprie¬ 
tors, together with James Alexander, as Surveyor-Gen¬ 
eral of both Jerseys. The purpose of this mixed com¬ 
mission was two-fold—first, to establish the north par¬ 
tition point on the Delaware River in which both States 
were concerned, since the northern boundary line be¬ 
tween New Jersey and New York had not been fixed; 
and second, to settle the dividing line between East and 
West Jersey. John Chapman, who was selected to run 
the line, made a report upon it in 1720, his purpose evi¬ 
dently being to retrace the Keith line, as run in 1687. 
Nothing was accomplished by this commission in the 
way of settling the question. According to a pamphlet 
published by the Proprietors of West Jersey, in 1785, 
entitled ‘^A concise view of the controversy between 
the proprietors of East and West Jersey,” “The Com¬ 
missioners met, quarrelled, executed the Tripartite 
deed, broke off, disputed about the goodness of their 
mathmatical instruments, separated without running 
the line.”^ 

^Report of the Committee of the Council of Proprietors of West 
New Jersey in relation to the Province Line between East and West 
New jersey, 1887, p. 15. 



52 


WATE^RWAYS OF NFW JFRSFY. 


In 1743, Upon request of the East Jersey Proprietors, 
Governor Lewis Morris commissioned John Lawrence 
‘^to run, mark, fix and ascertain the said lines of partition 
pursuant to said act of Assembly.” This line it was 
claimed by the West Jersey Proprietors was ex parte and 
entirely in the interests of the eastern division. The mat¬ 
ter dragged along until 1767, when the King appointed 
a Royal Commission, which finally settled the northern 
station point as in 41° 21' 37" north latitude, where the 
Mackhackmack, or Navesink, river falls into the Dela¬ 
ware.^ Thus the dispute of two centuries as far as the 
one end of the line was practically settled, although the 
line has not, to the present time, been laid out in its en¬ 
tirety. 

^ See reference pages 53-58. (N. Y. and N. J. Northern Boundary 

Line.) 



STATE BOUNDARY LINES 


Northern Boundary Line Between New Jersey and 
New York 

Another matter closely related with the division, or 
province, line was the northern boundary line between 
New York and New Jersey. With the settlement of the 
“northern station point” for the line between East and 
West New Jersey, one point in the State line would also 
be' determined. It then only remained to fix the location 
of the 41st degree of latitude on the Hudson River. The 
Royal Commission, already noted, after determining the 
northeastern station, proceeded to mark the exact location 
of the eastern point of the line between the two States. 
The report of the Commission is interesting as showing 
the line of reasoning used in selecting the several points 
and is as follows: 

City of New York, the 7th day of October, 1769. 

“The Agents on the part of both Colonies, having 
offered to the Court^ all that they thought necessary 
or proper in Support of their respective Claims, and 
the Court having considered the Same, Do find, 

“That King Charles the Second by his Letters 
patent bearing date the twelfth day of March, 1664, 
did Grant and Convey to his Brother the Duke of 
York, All that Tract of Country and Territory now 


^The Court, being the Royal Commission appointed by the King 
of England. 

(53) 




54 


WATERWAYS OR NEW JERSEY. 


Called the Colonies of New York and New Jersey; 
and that The said Duke of York afterwards, by his 
Deed of Lease and Release bearing date the 23d and 
24th Days of June, 1664, did Grant and Convey to 
Lord Berkeley of Stratton and Sir George Carteret, 
that part of the Aforesaid Tract of Land Called 
New Jersey. The Northern Bounds of which in 
said Deed are described to be ho the Northward as 
far as the Northernmost Branch of the said Bay or 
River of Delaware which is in 41 deg. 40 min. of 
Latitude and Crosseth thence in a Straight Line to 
Hudson’s River in 41 deg. of Latitude.’ 

“We further find among the many Exhibits a 
Certain Map compiled by Nicholas John Vischer, 
and published not long before the aforesaid Grant 
from the Duke of York, which we have reason to 
believe was Esteemed the most Correct Map of that 
Country at the Time of the said Grant, on which 
Map is Laid down a Fork or Branching of the River 
then Called Zuydt River or South River now Dela¬ 
ware River, in the Latitude of 41 deg. and 40 min., 
which Branch we Cannot doubt was the Branch in 
the Deed from the Duke of York Called the North¬ 
ernmost Branch of the said River, and which in the 
Deed is said to lye in the Latitude of 41 deg. and 40 
min. And from a Careful Comparison of the several 
Parts and Places Laid down on the said Map, some 
of which, more Especially towards the Sea Coast 
and on the Hudson’s River we have reason to be¬ 
lieve were at the time well known. The Distance of 
the said Branch from the Sea Shore on the South, 
and the Relative situation of the same with regard 
to other places and the lines of Latitude as they ap¬ 
pear to be laid down on the said Map at that and 
other places in the Inland Country: We are of the 



Old Map of New Jersey, about 1650 











































WATERWAYS OE NEW JERSEY. 


55 


opinion that the said Branch so laid down on the 
said Map, is the Fork or Branch formed by the Junc¬ 
tion of the Stream or Water Called the Mahacka- 
mack, with the River Called Delaware or Fishkill, 
and that the same is the Branch Intended and re¬ 
ferred to in the before mentioned Deed from the 
Duke of York, as the Northern Station at the River 
Delaware, which Fork or Branch we find by an ob¬ 
servation taken by the surveyors appointed by the 
Court, to be in the Latitude of 41 deg. 21 min. and 
37 seconds. 

“We are further of the opinion that the Northern 
Station at Hudson’s River being by the words of the 
said Deed from the Duke of York, Expressly 
Limited to the Latitude of 41 deg. should be fixed in 
that Latitude, which Latitude we have caused to be 
taken in the best manner by the Surveyors appointed 
by the Court, and which falls at a Rock on the West 
Side of Hudson’s River marked by the said Survey¬ 
ors, being 79 Chains and 27 Links to the Southward 
on a Meridian from Sneydon’s House, formerly 
Corbet’s. 

is Therefore the final Determination of the 
Court That the Boundary or Partition Line between 
the said Colonies of New York and New Jersey, be 
a direct and straight Line from the Said Fork at the 
Mouth of the River Mahackamack, in the Latitude 
of forty-one degrees twenty-one minutes and thirty- 
seven seconds to Hudson’s River at the said Rock, 
in the Latitude of forty-one degrees as above de¬ 
scribed. 

(Signed) “Chas. Stewart, 
“Andrew Eeeiot, 
“Andrew Oeiver, 
“Jared Ingersoee.” 


56 wate:rways or nrw jersRy. 

“Samuel Holland and Charles Morris, Esquires, two 
of the members of the Court not Concurring in a part 
of the foregoing determination, viz.. That part respecting 
the Station at Hudson’s River, desired to have their 
Reasons for such their Dissent entered on the Minutes 
of our Proceedings, which was allowed and they are as 
follows: 

“The Northern Boundary of the Province of New 
Jersey, is the matter Submitted to our Consideration 
and to Ascertain the Extremities of the Partition 
Line upon Hudson’s and Delaware Rivers. 

“In doing this We are to proceed upon Principles 
of Justice and Equity, having respect to the Proofs. 
This we apprehend to be (the) Language and Intent 
of (our) Commission and It is necessary It should 
be so because the Country was but little known at 
the Time The Grants to the Duke of York were 
made, and We must of necessity have recourse to 
the ancient Maps which were in being at Time of 
making these Grants. 

“It is difficult to ascertain with precision what 
Lands passed to the Duke of York by his Grant, 
Either from the Express Words of the Grant or by 
any Maps of the Country that appear to us to have 
been then extant. Nor is it probable that the Duke 
or his Grantees were better Informed when He Con¬ 
veyed New Jersey to Berkley and Carteret; the best 
Lights we have on this Matter are the Maps of 
Vischer. 

“The words relative to the Latitude in the Grants 
to Berkley and Carteret, are words of Description 
concerning the Northernmost Branch of Delaware, 
and We do not find upon Inquiry any Branch in the 


WATERWAYS OR NEW JERSEY. 


57 


Latitude mentioned. A Branch nevertheless Seems 
to be Intended. The Branch nigh to that Latitude 
is Mahackamack and which, from a view of this 
Ancient Map we are Induced to believe was the 
North Partition point intended by the Parties, and 
think in Justice and Equity ought to be so deter¬ 
mined, because a Line from Hudson’s River to the 
Branch at Easton, claimed on the part of New York, 
or to that of the Poughpaxtonk and Mohawk 
Branches claimed by New Jersey, would Involve 
many of his Majesty’s subjects in Absolute Ruin who 
hold respectively under Each Government. 

‘Tt is therefore upon this principle The Point on 
Hudson’s River we apprehend ought also to be fixed 
for as It appears by Vischer’s Map that the Latitude 
of forty-one on Hudson’s River, which Map We ap¬ 
prehend was the Guide and direction to the Duke in 
forming his Grants to Berkley and Carteret. This 
Map, ascertains the Latitude of forty-one on the 
upper part of the Manhattan’s Island. 

^Tf the Country therefore was vacant we should 
not Hesitate in Declaring that the Latitude of forty- 
one as laid down in the Ancient Maps would in 
Equity be the Station on Hudson’s River, and more 
Especially because We have had abundant Experi¬ 
ence in our own Departments to Observe that the 
Ancient Geographers find their Latitudes in these 
parts of the Continent Several Miles more Southerly 
than they are found to be by more modern Observa¬ 
tions. In Tenderness therefore to the New Jersey 
Settlers, We are Inclined to a more Northern Sta¬ 
tion and in settling the place where. Consider that 
before the Contested Territory was planted a Place 
due West of Frederick Phillips Mills gained the 
Reputation as the Station Point upon Hudson’s 


58 WATERWAYS OE NEW JERSEY. 

River, and a Line from this Station which appears 
to be Anciently fixed by the Governments concerned 
will be the Least detrimental to the Settlers, and one 
more Northerly will Comprehend many Farms in a 
populous Neighborhood held under New York by 
Ancient Patents. We Cannot help being of Opinion 
That a Line thence to the Mahackamack Branch will 
be the most Just and Equitable of any We can fix 
upon agreeable to the design of the Royal Commis¬ 
sion which We imagine will be most Conformable 
to His Majesty’s Gracious Intentions to His Sub¬ 
jects in both Provinces. 

(Signed) ''Samuee Hoeeand, 
‘'Charees Morris/'’ 

Notwithstanding the report of the Royal Commission, 
this matter was not actually settled, however, until Sep¬ 
tember 22, 1772, when the Assembly passed an act defin¬ 
ing the boundary line and authorizing the appointment of 
Commissioners to definitely mark the same, which act was 
approved by the King in council September i, 1773.^ 
The Commissioners so appointed reported on November 
13, 1774, that the line had been marked according to the 
award of the Royal Commission. In 1874 a survey of 
the boundary lines was made under the authority of a 
joint commission of the two States and of the United 
States, and it was found that instead of the 1774 line 
running in a straight line, it was 2,415 feet south of the 
straight line at Greenwood Lake, and that many of the 
monuments were lost. Therefore, in 1881, a joint com¬ 
mission representing New Jersey and New York marked 
the line, by permanent monuments adhering to the orig- 


^ Paterson’s Laws of New Jersey, p. 7; Ibid, p. 22. 



WATERWAYS OE NEW JERSEY. 59 

inal survey of 1774, and in their report of 1883 they state 
that the northwestern station point is actually in latitude 
41 21 22.63" north and longitude 74° 41' 40.70" west 

from Greenwich; while the station point on the Hudson 
River is in latitude 40° 59' 48.17" north and longitude 
73 ° 54 ii'' west from Greenwich. 

Eastern Boundary Line Between New York and 
New Jersey 

Probably no boundary line dispute caused more con¬ 
troversy, or was fought harder, than that relating to the 
exact location of the line in and along the Hudson River 
and including the ownership of Staten Island. The grant 
from the Duke of York to Sir George Carteret, dated 
September lo, 1680, in defining the territory included in 
that instrument, recited: 

“All that Tract of Land adjacent to New Eng¬ 
land in the parts of America and lying and being to 
the Westward of Long Island and Manhattas Island 
and bounded on the East part by the Maine Sea and 
part by Pludsons River * * 

all the lands Islands Soyles Rivers Harbours 
Mines etc., * * * ^i] other Royalties prof- 

itts Com’oditys and hereditaments vnto the said 
p’r’misses belonging or appertaineing with their and 
every of their app’ten’ces.’’^ 

There is a legend which states that Governor Nicolls 
was in a quandary as to the meaning of the grant, where¬ 
in it stated that the boundaries of New York should in¬ 
clude the “small islands in adjacent waters.” Finally, 


^ New Jersey Archives, vol. I (first series), p. 338. 



6 o 


WATERWAYS OE NEW JERSEY. 


deciding that this designation would include any island 
which could be circumnavigated within twenty-four 
hours, he commissioned Captain John Billup to make the 
attempt. All went well on this trip until the Kill van 
Kull was reached, where, being unacquainted with the 
channel, the vessel frequently went aground. Several 
Indians put out from the shore, and through their assist¬ 
ance Billup was able to safely navigate the channel and 
complete the task within the specified time. Whether 
there is any foundation to this story or not, the fact re¬ 
mains that Staten Island was taken under the jurisdiction 
of the province of New York. 

In 1681 Governor Phillip Carteret, representing the 
East Jersey proprietors, addressed a letter to the Gover¬ 
nor of New York demanding the surrender of Staten Is¬ 
land, and followed this up by issuing a proclamation to 
the inhabitants of the island commanding them to pay 
allegiance to the Governor of East Jersey. Matters 
dragged along with the territory in question, however, 
under control of New York. 

In 1806, upon overtures made by the Legislature of 
New Jersey to the State of New York, Joint Commis¬ 
sioners were appointed to definitely fix the boundary lines 
between the two States. After a number of conferences, 
it was found that the New York Commissioners would 
not agree to any general jurisdictional lines, other than 
those which they themselves proposed. The essential 
part of their proposal was that New York should have 
exclusive jurisdiction over all the waters between the 
States, ‘‘including shores, roads, and harbors within the 
natural territorial limits of New Jersey.” Again, in 


WATERWAYS OR NEW JERSEY. 6 1 

i8i8 and 1824, proposals were made by New Jersey for 
the settlement of this controversy without results. The 
matter was finally taken to the United States Supreme 
Court by the Attorney General of New Jersey, but, be¬ 
fore any decision was handed down. New York agreed to 
another conference. In 1833, under “An Act for the set¬ 
tlement of the territorial limits and jurisdiction between 
the States of New Jersey and New York,” Commission¬ 
ers were appointed, who finally agreed upon a boundary 
line which was approved by both legislatures and rati¬ 
fied by the United States Congress by resolution ap¬ 
proved June 28, 1834. 

Idle compact entered into by the two States provided 
that: 

Article 1. The boundary line, from; a point in the mid¬ 
dle of Hudson river, opposite the point of the west shore 
thereof, in the forty-first degree of north latitude, to the 
main sea, shall be the middle of the said river, of the bay 
of New York, of the water between Staten Island and 
New Jersey, and of Raritan bay to the main sea, except 
as otherwise especially mentioned. 

Article II. The State of New York to retain its 
present jurisdiction over Ellis’ and Bedlow’s islands and 
any other islands in the waters above-mentioned and now 
under the jurisdiction of that State. 

Article III. The State of New York to enjoy exclu¬ 
sive jurisdiction over all the waters of the bay of New 
York, and over all waters of the Hudson river, lying 
west of Manhattan island and to the south of the mouth 
of Spuytenduyvel creek, and of and over the lands cov¬ 
ered by the said waters to the low-water mark on the 


62 


wate:rways OF' ne:w je^rs^y. 


westerly, or New Jersey, side thereof, subject to the fol¬ 
lowing rights of property and jurisdiction of the State of 
New Jersey, that is to say: 

(1) The State of New Jersey shall have exclu¬ 
sive right of property in and to the land under water, 
lying west of the middle of that part of the bay of 
New York, and west of the middle of that part of the 
Hudson river, which lies between Manhattan island 
and New Jersey. 

(2) The State of New Jersey shall have exclu¬ 
sive jurisdiction over all wharves, docks and im¬ 
provements on the shores of said State, and over all 
vessels aground on said shore, or fastened to any 
wharf or dock, except that said vessels shall be sub¬ 
ject to the quarantine or health laws, and laws in 
relation to passengers of the State of New York. 

(3) The State of New Jersey shall have exclu¬ 
sive right to regulate fisheries on the westerly side 
of said waters; provided, that navigation is not ob¬ 
structed or hindered. 

Article IV. The State of New York shall have exclu¬ 
sive jurisdiction over the waters of the Kill von Kull, be¬ 
tween Staten Island and New Jersey, to the western¬ 
most end of Shooter’s island, in respect tO' such quaran¬ 
tine laws, and laws relating to passengers and for exe¬ 
cuting the same; the said State shall also have exclusive 
jurisdiction for like purposes over the waters of the sound 
from the westernmost end of Shooter’s island to Wood- 
bridge creek, as to all vessels bound to any port in the 
State of New York. 

Article V. The State of New Jersey shall have exclu¬ 
sive jurisdiction over all the waters of the sound between 


wati:rways or new jersey. 


63 


Staten Island and New Jersey, south of Woodbridge 
creek, and over all waters of Raritan bay, lying westward 
of a line drawn from the lighthouse at Prince’s bay to 
the mouth of Matawan creek, subject to the following 
rights of property and jurisdiction of the State of New 
York, that is to say: 

(1) The State of New York shall have the exclu¬ 
sive right of property in lands under water lying be¬ 
tween the middle of the said waters and Staten 
Island. 

(2) The State of New York shall have the exclu¬ 
sive jurisdiction of all wharves, docks and improve- 

, ments along the shores of Staten Island, and of all 
vessels aground on said shores, or fastened to such 
wharves or docks, except that said vessels shall be 
subject to the quarantine or health laws, and laws 
relating to passengers of the State of New Jersey. 

(3) The State of New York shall have exclusive 
right to regulate fisheries between the shores of 
Staten Island and the middle of said waters; pro¬ 
vided, that the navigation of said waters is not ob¬ 
structed or hindered. 

Articles VI and VII. Provide that civil and criminal 
process for crimes committed within either State may be 
served in any part of the said waters, except such person 
or property be aboard a vessel aground on the shore, or 
fastened to the wharf of the other State, or unless such 
person or property be under arrest or seizure by virtue 
of the process of authority of the other State. 

While this boundary line was vague and indefinite, 
so far as its actual location was concerned, it answered 
the purpose for a long time. With the increase in the 
number of oyster beds laid out in Raritan Bay, however, 

5 


64 


wate:rways new jersey. 


it became necessary to locate and monument the actual 
line. Therefore, in 1887, a joint commission was ap¬ 
pointed to do this, the report thereon being made to the 
legislature in December, 1889. By an Act of 1891, the 
Riparian Commission was directed to, every three years, 
cause an examination to be made of the monuments 
marking the boundary line and to restore or replace any 
that were out of place or destroyed. 

Boundary Line Between Pennsylvania and New Jersey 

As early as 1721 certain residents of Pennsylvania 
and New Jersey petitioned the English Lords Commis¬ 
sioners of Trade and Plantations for grants of the islands 
in the Delaware River lying between the two States. 
While many of these were issued by the Crown upon pay¬ 
ment of quit-rents, the jurisdiction over the lands was not 
definitely determined, and this led to much disorder and 
uncertainty. 

In 1772 commissioners representing Pennsylvania 
and New Jersey were appointed to determine the rights 
of the respective States in these islands, and their report 
was ratified by the Legislature of New Jersey on May 
27, 1783.^ This agreement provided that the Delaware 
River should remain a common highway, “Equally free 
and open for the use, benefit and advantage, of the said 
contracting parties,” reserving to each legislature the 
right to regulate fishing on, or adjacent to, its own 
shores. Each State was given concurrent jurisdiction 
upon the waters of the river. Every vessel, while lying 
at anchor before any city or town, in either State, where 


^ Paterson’s Laws of New Jersey, pp. 47-49. 



WATERWAYS OR NRW JERSEY. .65 

she intends to, or had already, loaded or unloaded was to 
be within the jurisdiction of such State. In criminal 
cases Ihe offenders were to be tried in the State in which 
first arrested, or prosecuted. 

The islands in the Delaware River were assigned to 
the respective States in accordance with the terms of the 
agreement. From the Falls of Trenton northward the 
islands were, as to jurisdiction, “deemed and considered 
as parts and parcels of the State to which such insulated 
dry land doth lie nearest.” Below the Falls of Trenton, 
jurisdiction of the following islands was in the State of 
Pennsylvania, namely. Bile’s Island, near Trenton; Wind¬ 
mill Island, opposite Philadelphia; League Island, Mud or 
Fort Island, Hog Island and Little Tinnicum Islands. 
The State O'f New Jersey was given jurisdiction over 
Biddle’s, or Newbold Island, Burlington Island, Petty’s 
Island, Redbank Island, Harmanus Helm’s Island, Ches¬ 
ter and Shiver’s Islands. 

By the act of November 26, 1783, the islands which 
were assigned to the jurisdiction of New Jersey were an¬ 
nexed to the counties and townships to which they were 
contiguous, except Petty’s Island, which was assigned to 
Newton township. 

The agreement regarding the islands above the Falls 
of Trenton does not appear to have been entirely satisfac¬ 
tory for in 1786^ we find a ratification of a new agree¬ 
ment by the commissioners of the respective States, in 
which these islands are specifically named and the coun¬ 
ties and townships to which they are annexed mentioned 
as follows: 


^Paterson’s Laws of New Jersey, pp. 50-51. 



66 


WATERWAYS OR NRW JRRSRY. 


'‘the following islands, opposite the County of 
Bucks and the townships hereafter named, that is 
to say, opposite to the Falls township. Bird’s island; 
opposite to Lower Makefield township. Slack’s three 
islands, Duer’s island, and Harvey’s lower island; op¬ 
posite to Upper Makefield township, Harvey’s up¬ 
per island and Lowne’s island; opposite to Sole- 
bury township; Smith’s island and bar, and Pax¬ 
ton’s island and bar; opposite to Tinnicum town¬ 
ship, Pratt’s two islands. Wall’s island. Resolu¬ 
tion island, Marshall’s island. Wall’s two islands. 
Fishing island, and Pennington’s island; opposite to 
Nockamixon township, Loughley’s island; and oppo¬ 
site the county of Northampton and the townships 
hereafter named, that is to say, William’s township, 
Pohatcung island. Shoemaker’s island, and Loor’s 
island; opposite to the Forks township, Easton 
island; opposite to Mount Bethel, Mason’s island and 
bar, Mason’s island, Foul Rift island, M’Elhany’s 
island, and Attin’s two islands; opposite to Lower 
Smithfield, Handy’s island and bar, Goodwin’s two 
islands, Shawanagh, or L and B. Van Campen’s 
island, H. Depew’s island and two bars. Chamber’s 
island, and Van Oken’s island; opposite to Delaware 
township, Swartwood’s island, and Isaac Van 
Campen’s island; opposite Upper Smithfield town¬ 
ship, Punkey’s island and five bars, shall be annexed 
to the State of Pennsylvania, and considered parts 
and parcels thereof. 

And that the following islands, opposite to the 
county of Hunterdon, in the State of New-Jersey, 
and the township hereafter named, that is to say, 
opposite to the township of Trenton, Yard’s island, 
Mott’s two islands, and Gould’s two islands; oppo¬ 
site to the township of Hopewell, Stout’s island; op- 


WATERWAYS OR NEW JERSEY. 


67 


posite to the township of Amwell, Smith’s Mill 
island, Coryell’s island, Holcombe’s two islands. 
Eagle island, and Bull’s island; opposite to the town¬ 
ship of Kingwood, Rush island. Ridge’s island. Shy- 
hawk’s three islands, Pinkerton’s island, and Man 
of war island; opposite to the township of Alexan¬ 
dria, Stull’s island, Lowrey’s island, and Loughey’s 
island and bar; and opposite to the county of Sussex, 
and the townships hereafter named, that is to say, 
opposite to the township of Greenwich, Rope’s 
island. Chapman’s island, Stout’s island and bar, 
and Bar island; opposite to the township of Oxford, 
Capush island. Foul Rift island, and Mack’s island; 
opposite to the township of Knowlton, Mack’s island 
and three bars, and Gap island; opposite to the town¬ 
ship of Wallpack, Hoop’s two islands. Chamber’s 
island, A. Van Campen’s fishing island, Opaugha- 
naugh island, and Necesseas island; opposite to the 
township of Sandyston, Nominack island and West- 
fall’s, island; opposite to the township of Montague, 
Minisink island. Quick’s two islands and bar, Shab- 
bacung great island and bar, and Westfall’s two 
islands, shall be annexed to the State of New Jersey, 
and hereafter be considered as parts and parcels 
thereof, agreeably to a map or chart of the said 
river, and description of the several islands and in¬ 
sulated dry land therein, made under our direction, 
by Mr. Reading Howell, surveyor, and herewith ex¬ 
hibited to each State. 

Secondly. That all other islands, which may here¬ 
after be formed within said river, between the falls 
of Trenton and the station point, or north-west 
corner of the State of New-Jersey aforesaid, shall 
hereafter be deemed and considered as parts and par¬ 
cels of the State, to which such islands may be 
nearest.” 


68 


wate:rways or nkw JKRSEY. 


Boundary Line Between Delaware and New Jersey 

The dispute as to the exact territorial limits and juris¬ 
diction in the Delaware River, between the Pennsylvania- 
Delaware line and Reedy Island arose as a result of the 
State of Delaware attempting to prevent citizens of New 
Jersey from fishing in the waters thereof. While this 
controversy was principally a matter of the right to take 
fish within the supposed limits of New Jersey, it also 
involved title to certain riparian lands. 

Delaware claimed title to the soil or bottom of the 
river within the twelve mile circle around New Castle 
under the charter from the Duke of York to William 
Penn, dated August 24, 1682. This grant from Charles 
II. to the Duke of York contained the following provi¬ 
sions : 

“All that the Town of New Castle, otherwise 
called Delaware, and Fort therein or thereunto be¬ 
longing, situated, lying and being between Maryland 
and New Jersey, in America; and all that tract of 
land lying within the compass or circle of twelve 
miles above the said town, situate, lying and being 
upon the River Delaware, and all the Islands in the 
said River of Delaware, and the said river and soil 
thereof lying north of the southermost part of said 
circle of twelve miles about the said town; and all 
that tract of land upon Delaware River and Bay, 
beginning twelve miles south from the said town of 
New Castle, otherwise called Delaware, and extend¬ 
ing south to Cape Lopan; together with all the lands 
islands, soils, rivers, harbours, mines, minerals, quar¬ 
ries, woods, marshes, waters, lakes, fishings, hawk¬ 
ings, huntings, and fowlings, and all other royalties, 


wate:rways or new jersey. 


69 


privileges, profits, commodities, and hereditaments, 
to the said town, fort, tracts of land, island and 
premises, or to any or either of them belonging or 
appertaining, with their and every appurtenances, 
situate, lying, and being in America, and all our 
estate, right, title and interest, benefit, advantage, 
claim and demand whatsoever, of, in, or to the 
said town, fort, lands, or premises, or any part or 
parcel thereof, and the reversion and reversions, re¬ 
mainder and remainders thereof, together with the 
yearly and other rents, revenues, and profits of the 
premises, and of every part and parcel thereof 

New Jersey claimed under the several court decisions 
that the King of England had no right or power to grant 
title to the soil under tidal waters (see pp. 73-89) and that 
the fishing rights were not subject to conveyance or grant 
by the King. 

In 1873 commissioners were appointed under an “Act 
for the settlement of the territorial limits of the State of 
New Jersey and the State of Delaware.’’^ The commis¬ 
sioners representing Delaware were Joseph P. Comegys, 
William G. Whiteley and Edward C. Martin, while those 
for New Jersey were Abraham Browning, Courtland 
Parker and Albert H. Slape. Nothing, however, came of 
this conference since the Delaware commissioners in their 
report dated July 2, 1874, practically refused to arbitrate. 
In 1876, therefore, the Legislature of New Jersey author¬ 
ized the Attorney General to “institute and prosecute, in 
the Supreme Court of the United States, a suit in equity, 
or an action at law, by the State of New Jersey against 


Maws of New Jersey, 1873, part i, p. 30. 



70 


WATERWAYS OE NEW JERSEY. 


the State of Delaware, to ascertain, determine and settle 
the true territorial boundary line between the said States 
and the extent of the jurisdiction of each of said States 
in and on the said river.” 

An injunction was obtained, so far as the Delaware 
River was concerned, the limits of the river by agree¬ 
ment being a line drawn from the Cohansey light-house 
to Bombay Hook Point. Notwithstanding the fact that 
heretofore it had been generally understood that the ter¬ 
ritorial line in Delaware Bay was the middle thereof, the 
Delaware authorities now began to molest citizens of 
New Jersey fishing in the bay within the accepted limits 
of their State. The retaliatory measures pursued by the 
State of Delaware promised to involve the two common¬ 
wealths in further litigation, for it should be borne in 
mind that the injunction obtained by New Jersey against 
the Delaware authorities, as regards their interference 
on the Delaware River, was still pending and in force. 
A new commission was appointed in 1903 to settle the 
points in dispute. An agreement was drawn up by this 
joint commission defining the respective rights of the 
two States which was adopted by the Legislature of New 
Jersey in 1903, but failed of adoption by Delaware at 
that time. The agreement was again brought up in 1905 
and passed the Legislatures of both States. The follow¬ 
ing are the essential points of the agreement: 

I. Concurrent jurisdiction on the Delaware River 
between the respective low water lines is granted to 
each State in civil and criminal processes, unless the 
person or property be on board a vessel grounded 
upon or fastened to the shore or a wharf in either 
State. 


WATERWAYS OE NEW JERSEY. 


71 


2. Reedy Island and Pea Patch Island are to be 
exclusive territory of the State of Delaware.^ 

3. Common rights of fishing are granted to the 
citizens of each State when they do not conflict with 
any private fishery rights heretofore granted. 

4. Uniform laws to regulate fishing shall be 
enacted by each State within two years and in the 
meantime the existing laws of the several States shall 
remain in force. 

5. Each State on its own side of the river may 
continue to exercise riparian jurisdiction of every 
kind and nature, and to make grants, leases and con¬ 
veyances of riparian lands under the laws of the 
respective States. 

6. That the agreement after ratification by the 
Legislatures of the respective States was to be sub¬ 
mitted to Congress for approval. Upon the ratifica¬ 
tion the suit then pending in the Supreme Court of 
the United States was to be withdrawn. 


This agreement was ratified by the Congress of the 
United States in 1905, thus settling the territorial limits, 
but there still remains the adoption of uniform fishing 
laws, which, while passed by the Legislature of New Jer¬ 
sey in 1907, have not been adopted by Delaware. 

^ Pea Patch Island was formed in the Delaware Bay, about 
1675, from the sinking of a vessel loaded with peas, and by gradual 
alluvion its surface was raised above high water. It is located 600-800 
feet nearer the New Jersey shore than the Delaware shore, and the 
main ship channel was between Pea Patch and the Delaware shore. By 
virtue of warrants from the Council of Proprietors of West Jersey, a 
survey of this island was made to Edward and Clement Hall and re¬ 
corded in the books of the Proprietors in 1784. Subsequently the title 
passed to Dr. Henry Gale, who immediately established a fishery on the 
island. This conveyance was confirmed by the Legislature of New 
Jersey by act of November 24, 1831. Delaware on the other hand 
claiming title had ceded this island to the United States, but no attempt 
to take possession was made by the Federal authorities until about 



72 


WATERWAYS OE NEW JERSEY. 


1835, when a forcible entry upon the land was made. At the November 
Term, 1836, of the Circuit Court of the United States for New Jersey 
the matter came before Judge Baldwin and the decision of the jury was 
in favor of the New Jersey claimant (John Den ex. dem. Gale vs. 
Bealing). In 1847 Secretary of War Marcy entered into an agreement 
with James Humphrey, who had succeeded to the Gale title, whereby 
the question of ownership of Pea Patch Island should be submitted to 
John Sergeant, as arbitrator (Senate Ex. Doc. No. 140, 25th Congress, 
2d Session) (1838) and Senate Ex. Doc. No. 21, 30th Congress, ist 
Session (1848). The award of the arbitrator was in favor of the 
United States. This decision was founded principally upon the deed 
of August 24, 1682. It should be noted, however, that this deed con¬ 
veyed only property and did not grant any rights of government. It 
was therefore contrary to the reasoning in Martin vs. Waddell (see p. 
81) and Corfield vs. Coryell (4 W. (Cir. Court), p. 384). In the latter 
case Mr. Justice Washington said, “the effect of the revolution, and of 
the treaty of peace, was to extend the limits of those States [New Jersey 
and Delaware] to the middle of the bay, from its mouth upwards.” 

As the United States was in possession of the island for the pur¬ 
pose of using it as a site of a fortification, no attempt was made by New 
Jersey to dispute the claim. The provision of this second condition was 
merely as regards the fee in case the United States should abandon the 
use of Pea Patch Island; Reedy Island was never claimed by New 
Jersey. (See also I Zabriskie, pp. 166-169.) 


RIGHTS AND TITLE TO RIPARIAN LANDS 


In the preceding pages we have followed the vari¬ 
ous stages, or steps, upon which the titles to the upland 
are founded. It is essential, to a, clearer understanding 
of the foundation upon which the right of New Jersey to 
its riparian land is based, to study the original status of 
these tidal lands, as well as the legal decisions relating to 
this subject 

In order that, in studying the various court decisions, 
we may have a clear understanding of the several terms 
used in these opinions, the judicial definitions of such 
words as ‘‘high-water mark,” “low-water mark,” “the 
shore,” etc., are given below. It is absolutely necessary 
that these words should be carefully and correctly used, 
since, to the ordinary layman, they are often considered 
indiscriminately, or from an erroneous standpoint. 

“High-water mark” is the line to which a tidal 
stream rises for a period sufficient to deprive the 
soil of vegetation and render it valueless for agri¬ 
culture.^ This mark depends upon the rise and fall 
of the tide. It must be noted, however, that at dif¬ 
ferent times of the year, or at successive phases of 
the moon, the height of the tides vary considerably 
so that we must examine the authorities to see at 
what particular time, or phase, the mark is to be 
ascertained. 

The law takes notice of three kinds of tides: 
the “high spring tides,” which occur at the time of 

^ See Hale, De Jure Maris; Paine Lumber Co. vs. U. S., 55 Fed. 
Rep., 854; Carpenter vs. Board of Com. of Minn., 55 Minn., 513; 58 
N. W., 295. 

(73) 



74 


WATERWAYS OR NRW JRRSRY. 


the equinoxes, the “spring tides,” which happen 
twice every month, at the full and change of the 
moon, and the “neap,” or “ordinary tides,” which 
happen between the full and change of the moon 
twice in twenty-four hours. The tides which take 
place daily would seem to be the logical ones to con¬ 
sider. “Hale states the rule of the common law 
to be that the shore is that land only which is usually 
overflowed by ordinary tides.” 

“Low-water mark” is the point to which the tidal 
stream recedes at its lowest stage, that is, during 
“neap tides.” 

“The Shore” is, in legal terminology, strictly only 
applied to the space between high and low-water 
marks, or, in other words, the land which is alter¬ 
nately covered and left dry by the rising and falling 
of the tide. It is, however, sometimes used on non- 
tidal streams in referring to the bank, or that por¬ 
tion thereof, which touches the water. 

“Shore Line.” The line marking the edge of the 
water at ordinary high tides. 

“Shore Owner” or “Riparian Owner.” The owner 
of the upland above and adjoining the shore line, 
viz., above high-water mark. In its strictly applied 
common law sense it means the owner of the ripa or 
bank of a stream not navigable. 

“Riparian Lands.” Lands below high-water 
mark. 

Owing to the variations in the several State laws re¬ 
garding the status, of lands along the navigable water¬ 
ways and the ocean, the term “riparian rights” has re¬ 
ceived a varied interpretation. “Riparian rights, accord¬ 
ing to the strict meaning of the term, are such as follow, 


WATe:rWAYS or NRW JERSEY. 


75 


or are connected with, the ownership of the banks of 
streams or rivers (riparian from the Latin ripa, a river 
bank). Those whose lands border upon tide waters are 
called dittorar proprietors (from the Latin litus, the sea 
shore), and there appears to be nO' word or phrase of suf¬ 
ficiently broad meaning to include both riparian and lit¬ 
toral, although each is sometimes used to denote the 
other.’" As will be noted, the word “riparian” relates to 
the river bank and has nothing in its derivation to include 
reference to soil under water along this bank, so that 
when extended to embrace land in the stream, its author¬ 
ity,- therefore, rests upon “grant or presumption of law.” 
However, in New Jersey the term riparian is now gen¬ 
erally used to distinguish not only lands on tide waters, 
and along the ocean, but also on non-tidal streams. These 
rights are those which the State possesses in the soil, 
from high water mark to the limit of its territorial juris¬ 
diction. 

In considering the subject of waterways and their 
improvements the legal and statutory status in regard to 
public water must be examined. The several States dif¬ 
fer as to the rights of riparian owners to such an extent 
that what may be justified in one locality would not ap¬ 
ply to another section. The authority granted to ripar¬ 
ian owners by legislative, or local, enactment, to extend 
wharves out from the shore line is based on no general 
laws, but varies greatly in different States. The only 
controlling factor in this connection is that founded upon 
the public rights, jus publicum^ of navigation and the 
federal statutes tending to preserve and develop this 
right. 


76 WATERWAYS OE NEW JERSEY. 

The Lords Proprietors claimed jurisdiction of the 
present State of New Jersey, both as to lands and gov¬ 
ernment. In the “Concessions and Agreements” (Sec¬ 
tion iiij) provision was made for the public needs in con¬ 
nection with navigation as follows : 

“Section iiij —Item wee doe alsoe graunt con¬ 
venient proporc’ons of Land for highwaies and for 
Streets not exceeding lOO foote in bredth in Citties 
Town’s and Villages &c. for Churches fforts 
Wharf es Keyes Harbours and for publique 
houses.”^ 

In Chapter VI of the “West Jersey Concessions” of 
March 3, 1676-7,^ there was a similar provision regard¬ 
ing the granting of land for “Wharves, Keys, Harbours,” 
and also an express provision that all such lands shall be 
free from “all Rents, Taxes and other Charges and 
Duties whatsoever; as also that the Inhabitants of the 
said Province, have free Passage through, or by any Seas, 
Bounds, Creeks, Rivers, Rivelets in the said Province, 
through or by which they must necessarily pass, to come 
from the main Ocean to any Part of the Province afore¬ 
said.” 

According to these latter Concessions all inhabitants 
of the Province of West Jersey were to have the liberty 
of fishing in the Delaware River, or on the sea coast. 

As has been noted in a previous chapter, the Pro¬ 
prietors in 1702 relinquished their claim to the rights of 
Government, but retained their rights of property. The 
province now became a royal colony, and the inhabitants 


^ New Jersey Archives, vol. I (first series), p. 42. 
^New Jersey Archives, vol. I (first series), p. 249. 



WATERWAYS OR NRW JKRSRY. 


77 


thereof British citizens, invested with all the rights of 
freemen and subject to English laws. The “Grants and 
Concessions” of the Lords Proprietors, “Concessions 
and Agreements of the Proprietors, Freeholders and In¬ 
habitants of West New Jersey” and “Fundamental Con¬ 
stitution for the Province of East Jersey,” had no' further 
validity or binding force. The only form of government 
other than a few simple conditions in the agreement of 
surrender, are those contained in the letter of instructions 
to the Governor appointed by the Crown and in his Com¬ 
mission. 

• The title to the soil of the tidal waters of the colony 
was by the common law of England invested in the King, 
as one of the jura regalia^ or rights of the Crown, by 
reason of and for the exercise of sovereignty. This 
right undoubtedly passed from the King to the Duke of 
York, not under the grant of the lands, but under the 
grant of government. While the Duke of York received 
a patent for the territory embracing what is now the 
State of New Jersey, including the right to erect a gov¬ 
ernment therein, it is questionable if he could himself, by 
any grant, convey this right to others. Tanner aptly 
states the case as follows: 

“The right to institute government was, accord¬ 
ing to the English law, a prerogative right inherent 
in the crown which could only be conveyed to others 
than the king by his express grant and patent. This 
was the principle which was held from the time of 
the quo-warrantos of Edward L, and though it may 
have been disregarded in some cases, it was never¬ 
theless accepted in theory. The release of New Jer- 


78 


WATERWAYS OE NEW JERSEY. 


sey was merely a private transaction between James 
and Berkeley and Carterett, and the king had borne 
no part in it/’^ 

The only specific notice, of which we have a record, 
that this action of a mesne lord was acceptable to the 
King is the letter dated June 13, 1674, in which he ad¬ 
vises the inhabitants of the colony of New Jersey to 
yield obedience to the government of Sir George Carteret, 
“who hath the sole Power under us, to settle and dispose 
of the said Country, upon such Terms and Conditions as 
he shall think fit.”^ 

It has been held by many that the title to the rivers 
and the beds thereof, however, was held since Magna 
Charta by the Crown in trust for the whole people, sub¬ 
ject to certain common rights, including that of naviga¬ 
tion. This is aptly stated by Justice Carpenter in Gough 
vs. Bell (1850), who saidP 

“It must be admitted that, in the country from 
which we have chiefly drawn our rules of law, the 
doctrine now to be considered has long been well 
established. According to the common law rule, the 
boundary of the riparian owner, in streams above the 
tide, extends ad filum medium aquae: he is prima 
facie the proprietor of half of the land covered by 
water. If the same person be the owner of lands on 
both sides of the river, he owns the whole river to the 
extent of the length of his lands, subject to the jus 
publicum, if the river be navigable and a highway. 
Again, on the seashore, the bays and arms of the 

^Tanner, the Province of New Jersey (1908), p. 127. 

® New Jersey Archives, vol. I (first series), p. 154. 

“ 2 Zabriski, p. 472. 



WATe:rWAYS 01^ NEW JERSEY. 


79 


sea, and in navigable rivers where the tide ebbs and 
flows, the title of the riparian owner (meaning by 
this the owner of lands bounded by such waters), un¬ 
less by royal grant or prescription, extends only to 
the shore or high water mark. The shore, or space 
between ordinary high and low water mark, as well 
as the bed of the river or arm of the sea, is said to be 
vested in the King, in trust for the common benefit 
of all his subjects.’^ 

The rights of the King were restricted and limited to 
granting it only for public uses. This restriction natural¬ 
ly applied in every patent issued by the Crown, even if not 
specifically mentioned therein. On the other hand 

“Parliament representing the people could in the 
exercise of its unlimited power with the assent of 
the King dispose of such lands absolutely.”^ 

When, by the Treaty of Paris, England renounced 
sovereignty over the American Colonies, each State or 
Colony received all the sovereign rights which had here¬ 
tofore been vested in the Crown, and among these sove¬ 
reign prerogatives was that of control over the tidal 
waters around, or within her boundaries, to be held for 
the benefit of the whole people, for the same public pur¬ 
poses and subject to the same common rights. Under 
the Constitution, the Legislature, representing as it does 
the sovereignty of the State and the common people, has 
absolute control over the soil under tide waters. Upon 
the adoption of the Federal Constitution, each State 
ceded to the general government the right “to regulate 


^Attorney-General Robeson in opinion dated March 15, 1867. 

6 



8 o 


WATIIRWAYS OB' NBiW JERSB:y. 


commerce with foreign nations and among the several 
States, and with Indian tribes.” 

This has been the view taken of the subject in all of 
the decisions of the higher courts, both in this State and 
in the United States Courts, as will be noted in the sev¬ 
eral citations below. 

Chief Justice Kirkpatrick, of the Supreme Court of 
New Jersey, in 1821, in the case of Arnold v. Mundy,^ 
one of the celebrated cases on the riparian rights question 
in the State, said: 

“And I am further of the opinion, that, upon the 
Revolution, all of these royal rights became vested 
in the people of New Jersey, as the sovereign of the 
country, and are now in their hands; and that they, 
having, themselves, both the legal title and the 
usufruct, may make such disposition of them, and 
such regulations concerning them, as they may think 
fit; that this power of disposition and regulation 
must be exercised by them in their sovereign ca¬ 
pacity; that the legislature is their rightful repre¬ 
sentative in this respect,, and, therefore, that the leg¬ 
islature, in the exercise of this power, may lawfully 
erect ports, harbors, basins, docks and wharves on 
the coasts of the sea and in the arms thereof, and in 
the navigable rivers; that they may bank off those 
waters and reclaim the lands upon the shores; that 
they may build dams, locks and bridges for the im¬ 
provement of navigation, and in ease of passage; 
that they may clear and improve fishing places, to 
increase the product of the fishery; that they may 
create, enlarge and improve oyster beds, by planting 
oysters therein in order to procure a more ample 
supply; that they may do all these things themselves. 


^ I Halstead, 94. 



wate:rways or NRW JKRSRY. 8 1 

at the public expense, or they may authorize others 
to do it by their own labor, and at their own expense, 
giving them reasonable tolls, rents, profits or ex¬ 
clusive and temporary enjoyments; but still this 
power, which may thus be exercised by the sove¬ 
reignty of the State, is nothing more than what is 
called the jus regium, the rights of regulating, im¬ 
proving, and securing for the common benefit of 
every individual citizen.” 

Mr. Chief Justice Taney, of the United States Su¬ 
preme Court, in 1842, in Martin v. Waddell,^ said: 

“The English possessions in America were not 
claimed by right of conquest, but by right of discov¬ 
ery. For according to the principles of interna¬ 
tional law, as then understood by the civilized pow¬ 
ers of Europe, the Indian tribes in the new world 
were regarded as mere temporary occupants of the 
soil, and the absolute rights of property and domin¬ 
ion were held to belong to the European nations by 
which any particular portion of the country was first 
discovered. ******” 

“The country mentioned in the letters patent (to 
the Duke of Yorke) was held by the king in his pub¬ 
lic and regal character as the representative of the 
nation, and in trust for them. The discoveries 
made by persons acting under the authority of the 
government were for the benefit of the nation; and 
the crown, according to the principles of the British 
constitution, was the proper organ to dispose of the 
public domains; and upon these principles rest the 
various characters and grants of territory made on 
this continent.” 


^16 Peters, 369. 



82 


WATr:RWAYS 0^ NEW JERSEY. 


‘‘For when the Revolution took place, the people of 
each State became themselves sovereign; and in that 
character hold the absolute right to all their navig¬ 
able waters and the soils under them for their own 
common use, subject only to the rights since sur¬ 
rendered by the Constitution to the general govern¬ 
ment. A grant made by their authority must there¬ 
fore manifestly be tried and determined by differ¬ 
ent principles from those which apply to grants of 
the British crown, when the title is held by a single 
individual in trust for the whole nation.” 

“The dominion and property in navigable waters, 
and in the lands under them, being held by the King 
as a public trust, the grant to an individual of an 
exclusive fishery in any portion of it, is so much 
taken from the common fund intrusted to his care 
for the common benefit. In such cases, whatever 
does not pass by the grant, still remains in the 
crown for the benefit and advantage of the whole 
community. Grants of this description are there¬ 
fore construed strictly—and it will not be presumed 
that he intended to part from any portion of the 
public domain, unless clear and especial words are 
used to denote it. But in the case before us, the 
rivers, bays, and arms of the sea, and all prerogative 
rights within the limits of the charter, undoubtedly 
passed to the Duke of York, and were intended to 
pass, except those saved in the letters patent. The 
words used evidently show their intention; and there 
is no room, therefore, for the application of the rule 
above-mention ed. ” 

“The questions upon this charter (The Grant to 
the Duke of York) are very different ones. They 
are: Whether the dominion and propriety in the 
navigable waters and the soils under them passed 


WATERWAYS OR NEW JERSEY. 


83 


as a part of the prerogative rights annexed to the 
political power conferred on the duke. Whether in 
his hands they were intended to be a trust for the 
common use of the new community about to be es¬ 
tablished ; or private property to be parcelled out and 
sold to individuals for his own benefit. And in de¬ 
ciding a question like this, we must not look merely 
to the strict technical meaning of the words of the 
letters patent. The laws and institutions of Eng¬ 
land, the history of the times, the object of the char¬ 
ter, the contemporaneous construction given to it, 
and the usages under it, for the century and more 
which has since elapsed, are all entitled to considera¬ 
tion and weight. It is not a deed conveying private 
property to be interpreted by the rules applicable to 
cases of that description. It was an instrument upon 
which was to be founded the institutions of a great 
political community; and in that light it should be 
regarded and construed.” 

“Taking this rule for our guide, we can enter¬ 
tain no doubt as to the true construction of these 
letters patent. The object in view appears on the 
face of them. They were made for the purpose of 
enabling the Duke of York to establish a colony 
upon the newly discovered continent, to be governed, 
as nearly as circumstances would permit, according 
to the laws and usages of England; and in which 
the duke, his heirs and assigns, were to stand in the 
place of the king, and administer the government 
according to the principles of the British constitution. 
And the people who were to plant this colony, and to 
form the political body over which he was to rule, 
were subjects of Great Britain, accustomed to be gov¬ 
erned according to its usages and laws.” 


84 


WATERWAYS OR NEW JERSEY. 


‘'The estate and rights of the king passed to the 
duke in the same condition in which they had been 
held by the crown, and upon the same trusts. What¬ 
ever was held by the king as a prerogative right, 
passed to the duke in the same character. And if the 
word ‘soils’ be an appropriate word to pass lands 
covered with navigable water, as contended for on the 
part of the defendant in error, it is associated in the 
letters patent with ‘other royalties,’ and conveyed as 
such. No words are used for the purpose of separat¬ 
ing them from the jura regalia^ and converting them 
into private property, to be held and enjoyed by the 
duke, apart from and independent of the political 
character with which he was clothed by the same in¬ 
strument. Upon a different construction, it would 
have been impossible for him to have complied with 
the conditions of the grant. For it was expressly en¬ 
joined upon him, as a duty in the government he 
was about to establish, to make it, as near as might be 
agreeable in their new circumstances, to the laws and 
statutes of England; and how could this be done, if 
in the charter itself this high prerogative trust was 
severed from the regular authority? If the shores, 
and rivers, and bays, and arms of the sea, and the 
land under them, instead of being held as a public 
trust for the benefit of the whole community, to be 
freely used by all for navigation and fishery, as well 
for shell-fish as floating fish, had been converted by 
the charter itself into private property, to be par¬ 
celled out and sold by the duke for his own individual 
emolument ? There is nothing, we think, in the terms 
of the letters patent, or in the purposes for which it 
was granted, that would justify this construction. 
And in the judgment of the Court, the land under the 
navigable waters passed to the grantee as one of the 


WATERWAYS OR NEW JERSEY. 85 

royalties incident to the powers of government; and 
were to be held by him in the same manner, and for 
the same purposes that the navigable waters of Eng¬ 
land, and the soils under them, are held by the 
crown.’’ 

* * * And when the people of New Jersey 
took possession of the reins of government, and took , 
into their own hands the powers of sovereignty, the 
prerogatives and regalities which before belonged 
either to the crown or the parliament became im¬ 
mediately and rightfully vested in the State.” 

In Gough V. Bell, decided by the New Jersey Supreme 
Court in 1850^, Chief Justice Green said in connection 
with the extent of the title of the State to the soil of navi¬ 
gable rivers and its limits: 

“The ancient rule of the common law is, that the 
title of owners of land bounded by the sea, or by 
navigable rivers where the tide ebbs and flows, ex¬ 
tends to ordinary high water mark only. The title 
to the shore between ordinary high and low water 
mark, as well as the title to the soil under the water, 
belongs, prima facie, to the sovereign. Hale de 
Jura Maris, part /, cap. 4 ; case of the River Banne, 
Davies, ij2; Woolrych on Waters 20; j Kent 
Com. (2d ed.), 42'/, 431; Arnold v. Mundy, i Halst., 
6/; Martin v. Waddell, 16 Peters, 36/; Pollard’s 
lessee v. Hagan, 3 Howard, 212. 

“This title, which by the common law of Eng¬ 
land is vested in the king, upon the revolution, be¬ 
came vested in the people of the state. With this 
modification, growing out of the form of govern¬ 
ment, the rule of the common law prevails here, ex- 


^2 Zabriskie, pp. 455 - 457 * 



86 


WATERWAYS OR NRW JERSEY. 


cept SO far as it has been modified by statute or by 
local common law. In this state, the rule of the 
common law, as to the limits of the right, remains 
unaltered. High water mark constitutes the bound¬ 
ary between the proprietary and the sovereign titles. 
This point is fully settled by the cases already cited. 
Arnold v. Mundy, i Halst., i; Martin v. Waddell, 
i6 Peters, 

:}c ^ ;j« ^ 

‘Tt is said in the books, that the title to the soil of 
navigable rivers, and to the shores of the sea, is a 
branch of the king’s prerogative, of which he cannot 
divest himself; that the title is in him in trust for the 
public; that the rights of navigation and of fishery, 
and the use of the shores of the sea, are common 
rights, of which the people cannot be divested, except 
by their consent. Hence they cannot be aliened by 
the crown. * * 

“The authorities, upon this point, are by no means 
uniform, though the better opinion appears to be, 
that, since Magna Charta, the English sovereign has 
no power to alien the public domain.” 

“Whatever doubts may exist in regard to the 
power of the king to dispose of common rights, 
there exists none in regard to the power of parlia¬ 
ment. Parliament not only may, but does, exercise 
the power of aliening the public domain, of dispos¬ 
ing of common rights and of converting arms of the 
sea, where the tide ebbs and flows, into arable land to 
the utter destruction of the common rights of navi¬ 
gation and fishing.” 

“This power is attributed to the omnipotence of 
parliament, and it is said that no such omnipotence 
is vested in the legislature. The legislature, it is 


WATERWAYS OR NRW JERSEY. 8/ 

true, is not omnipotent in the sense in which par¬ 
liament is so. It is restrained by constitutional pro¬ 
visions. Its powers are abridged by fundamental 
laws. But it would seem clear upon principle, that 
in every political existence, in every organized gov¬ 
ernment, whatever may be its form, there must be 
vested somewhere ultimate dominion, the absolute 
power of disposing of the property of every citizen. 
In this consists eminent domain, which is an insep- 
erable attribute of sovereignty. This constitutes 
the omnipotence of parliament. If the legislature 
may dispose of the property of each individual citi¬ 
zen for the public good, it would seem to be no 
greater exercise of power to dispose of public prop¬ 
erty or the common rights of all the people for the 
same end. The objection to an alienation of the 
public domain by the king is, that he is but a trus¬ 
tee for the community. But the legislature are not 
mere trustees of common rights for the people. 
These rights are vested in the people themselves; the 
legislature, in disposing of them, act as their repre¬ 
sentatives, in their name and in their stead. The act 
of the legislature is the act of the people, not that of 
a mere trustee holding the legal title for the public 
good.” 

Justice Elmer, in 1856, in The State v. Mayor and 
Common Council of Jersey City,^ defined the public title 
to certain lands lying under the flow of tide as follows: 

“It must now be accepted as the established law in 
New Jersey, that the right of the owner of lands 
bounding on a navigable river, extends only to the 
actual high-water mark, and that all below that 


^ I Dutcher, 525. 



88 


wate:rways n^w je:rsey. 


mark belongs to the state. The inchoate right, if 
such it may be called, which the proprietor of the up¬ 
land has, either with or without a license, to acquire 
an exclusive right to the property, by wharfing out 
or otherwise improving the same, gives him no prop¬ 
erty in the land while it remains under water.” 

Chief Justice Beasley, in 1870, in the New Jersey 
Court of Errors and Appeals, in Stevens v. The Paterson 
and Newark R. R.,^ after reviewing all the previous de¬ 
cisions and presenting an exhaustive analysis of the legal 
history and doctrines by which the title of the State is 
secured and defined, said: 

“The steps which I have thus far taken have led 
me tO' this position: that all navigable waters within 
the territorial limits of the state, and the soil under 
such waters, belong in actual propriety to the pub¬ 
lic ; that the riparian owner, by the common law, has 
no peculiar rights in this public domain as incidents 
of his estate, and that the privileges he possesses by 
the local custom or by force of the wharf act,^ to ac¬ 
quire such rights, can, before possession has been 
taken, be regulated or revoked at the will of the 
legislature.” 

The accepted status of the State’s ownership in the 
riparian lands is, now, that the title to all lands below 
high-water mark is absolute and can be granted as it may 
see fit to any one, according to such regulations as its 
Legislature may deem for the public interests. 


^ 5 Vroom, p. 532. 

* See Wharf Act, p. 91. 



WAT£:rWAYS or new jersey. 


89 


Other than by such concessions and limitations as 
were placed in the several special acts, ^ granting specified 
individuals the right to bulkhead or erect wharves in front 
of their respective properties, or incorporating ferry, dock 
and transportation companies, the State of New Jersey 
gave practically no attention to its proprietorship of the 
riparian lands until 1851. 

^ For a list of the several legislative grants and concessions prior 
to 1864, see Report of Riparian Commissioners to the Legislature, 
dated February i, 1865. 





Early General Laws Relating to Impiovement of 
Navigable Waterways 


Wharf Act^ 

In 1851 the so-called Wharf' Act was passed by the 
Legislature of New Jersey, under which the Boards of 
Chosen Freeholders of the several counties were author¬ 
ized to issue licenses for improvements along the tide 
waters located within their respective borders. The act 
set'forth that any owner of lands situated on tide water 
could apply to, and obtain from these Boards permission 
to build docks, wharves or other structures in front of his 
lands and extending beyond the limits of ordinary low 
water, provided such improvements did not encroach upon 
or interfere with navigation thereon. Provision was 
made for advertising the application for a period of six 
weeks in a newspaper published in the county, or, where 
no paper was published in the county, then in one pub¬ 
lished in an adjacent county. Furthermore, a notice of the 
application, giving the location as well as the dimensions 
of the docks, or wharves, intended to be built, was to be 
posted in five of the most prominent places in the neigh¬ 
borhood of the lands in question. The Freeholders, when 
satisfied that all of the provisions of the act had been com¬ 
plied with and that the improvement was not a menace to 
navigation, or a detriment to adjacent property, could 
issue a license in accordance with the application. 

^Public Laws of 1851, p. 335. 

(91) 




92 


WATERWAYS OR NEW JERSEY. 


The license was to be recorded in the minute book of 
the Board of Chosen Freeholders, as well as recorded in 
the office of the County Clerk. 

By the act all docks, wharves, or other improvements 
must be completed within five years from the date of is¬ 
sue of the license. They were not assignable, except 
with, and as pertaining to, the land in front of which they 
were constructed and passed by the sale of any such lands 
as appurtenant to the same. There was no compensation 
to the State under this act for the lands under water so 
occupied. 

Under the Wharr Act it was decided by the New 
Jersey Court of Errors and Appeals in the case of Brown 
V. The State (Morris Canal and Banking Co., prosecu- 
tors), (1858) 

(1) That the Board of Chosen Freeholders have 
no power to examine into and decide upon the ap¬ 
plicant’s title to the lands above and adjoining the 
edge of the water at ordinary high water. 

(2) If proof is made and filed with their clerk that 
the notice required by the Act was given in accord¬ 
ance with the law, the only question they can ex¬ 
amine and decide is, whether the dock, wharf or pier 
applied for will interfere injuriously with the public 
rights of navigation. 

This act continued in force until 1869, when it was 
repealed, so far as it applied to the Hudson River, New 
York Bay and a portion of the Kill van Kull.^ It was 

^ 3 Butcher, p. 648. (This is a reversal of the Supreme Court, 3 
Butcher, p. 13.) 

^Laws of New Jersey of 1869, p. 1017. 



WATERWAYS OR NEW JERSEY. 93 

repealed so far as applying to other sections of the State 
by the Act of March 20, 1891.^ 

To all attempts which were made to continue work in 
the New York Bay section after 1869 under Freeholders’ 
licenses that had expired, objection was made by the 
State. Numerous suits were brought to enforce the 
State’s riparian claims and in each a verdict in favor of 
the State obtained. 

The repealing act of 1891 contained a provision 
that the Boards of Freeholders in the counties named 
in the act could continue to exercise their authority 
under the act of 1851 until the first day of the 
July following (1891), and that any improvements au¬ 
thorized under such licenses must be completed before 
January i, 1892. Naturally there was a considerable 
scramble to secure the necessary permission and many 
licenses were issued under this provision. Various ex¬ 
pedients were adopted in attempts to comply with this 
provision of the “repealer,” or with the provisions of the 
original Wharr Act. So numerous and palpable were 
some of these attempts at evasion of the actual spirit of 
the law, even though they might comply with the letter 
thereof, that the State brought suit to annul many of the 
Freeholders’ licenses.^ 

While there was no question as to the right of the 
holders of Freeholders’ licenses to the use and occupancy 
of the wharf or dock erected under its provisions, the 
title to the lands below high-water mark, upon which such 

^Laws of New Jersey of 1891, p. 216. 

® See The State (Stockton, Attorney-General), vs. The American 
Lucol Co., 36 Atlanta Rep., p. 572. 



94 


WATe:rWAYS Nl^W JERSEY. 


improvements were erected, still remained in the State 
and was not, nor could it legally be included in any 
licenses granted under the WharE Act. The New Jersey 
Constitution provides in Section VIII that: 

‘‘All grants and concessions shall be in the name 
and by authority of the State of New Jersey sealed 
with the great seal, signed by the governor, or per¬ 
son administering the government, and counter¬ 
signed by the secretary of state.” * * 

It will be noted that from this constitutional provi¬ 
sion, taken in connection with the various decisions of the 
courts, already recited, that the ownership of lands be¬ 
tween high-water and low-water marks is in the State, 
it was clear that the several Boards of Chosen Freeholders 
had no legal or constitutional right to convey these lands 
in fee simple to the abutting shore front owners. 

The general policy of those who had taken advantage 
of the WharE Act,, therefore, has been to seek a grant, 
or lease, from the State (through the Riparian Commis- 
mission, for which see below,) for the lands below the 
high-water mark and thus be in a position to give a clear 
and perfectly valid title to the property in question. The 
evil effects of the legislation of 1851 have as a conse¬ 
quence been largely corrected and the State has come 
again into “possession of its own.” 

Riparian Commission 

By resolution of the New Jersey Legislature, adopted 
February 23, 1848, three commissioners were appointed 
to inquire into and report to the next session of the Leg- 


WATERWAYS OR NEW JERSEY. 


95 


islature the extent and value of the lands owned by the 
State in the Bay of New York, Harsimus Bay and the 
Hudson River, within the county of Hudson, and such 
other matters in relation to the rights of the State and the 
citizens therein as they shall deem expedient. This was 
the beginning of the present system of riparian grants 
and leases. 

The Conimission reported substantially as follows re¬ 
garding lands submerged by navigable or tide waters 
from the margin to the channel: 

(1) That any grant of such lands is a govern¬ 
mental function and involves the exercise of a power 
partaking the nature and character of sovereignty. 

(2) That while the riparian owner might pos¬ 
sess the right to wharf out to low-water mark (al¬ 
leged to rest in usage or custom), in a large number 
of cases these owners sought specific legislative ac¬ 
tion to assure their rights. 

(3) That all such lands and title thereto are in 
the State. 

(4) That the Legislature may dispose of and 
regulate the lands beyond high-water mark for the 
advancement of commerce, or the improvement of 
fisheries; they may pass laws directly granting title, 
or authorize a commission to dispose of the same. 

(5) That since 1702 the Board, or Council, of 
Proprietors could not convey any submerged lands, 
they having no right or title in navigable rivers, nor 
in the soil under them. 

(6) That riparian use becomes absolute and in¬ 
defeasible only by the exercise, actual or presumed, 
of the State sovereignty. 

7 


96 


WATERWAYS OR NEW JERSEY. 


(7) That the early legislation of the State is 
replete with instances of recognitions and enforce¬ 
ment of the common rights of navigation and fish¬ 
ery, extending to creeks navigable by shallops, or in 
any way used for the transportation of produce. 

(8) That the right of ferry was not considered 
inseparably annexed or appurtenant to land, was 
frequently severed and made personal, and promoted 
by exclusive privileges, equivalent to a prohibition of 
the use and enjoyment of such right by the riparian 
owner. 

The Commissioners present no definite recommenda¬ 
tions other than the repeal of several acts, under which 
no work has been done within the time limits therein 
specified, and the fixing by permanent monuments of the 
boundary line in New York Bay between New York and 
New Jersey. They answer most of the questions in¬ 
volved by suggesting three, or four, plans and then leav¬ 
ing it to the Legislature to decide upon the one best 
suited. 

In 1864^ the New Jersey Legislature authorized the 
appointment of a Commission “to ascertain the rights 
of the State and of the riparian owners in the lands lying 
under the waters of the Bay of New York and elsewhere 
in this State.” The purpose of this act was partially in¬ 
quisitional and partially to form a definite policy to be 
pursued in regard to this asset of the State, including the 
establishment of exterior bulkhead lines. 

In the report which this Commission submitted to the 
Legislature in 1865, the following recommendations and 
suggestions were made: 


^Laws of New Jersey, 1864, p. 681. 



WATERWAYS OE NEW JERSEY. 


97 


(a) That exterior lines for solid filling in the 
waters of New York Bay and the Delaware River, 
on the maps accompanying the report, be adopted by 
the Legislature. 

(b) That the policy concerning the lands between 
high and low-water marks be continued, leaving it 
lawful for the owner of lands situated ‘‘along or 
upon tide waters to build docks or wharves upon the 
shore in front of his lands and in any other way to 
improve the same, and when so built upon to appro¬ 
priate the same to his own use.” 

(c) That no absolute grant be made of the 
State’s title in such shore unimproved, except to the 
owner of the adjacent upland, and that such grants, 
if made, be without compensation, but under such 
other conditions as the interests of navigation shall 
seem to require. 

(d) That during the next succeeding five years 
no grant of land under the tide water below low- 
water mark, shall be made to any other than the 
riparian owner, in front of whose shore line such 
lands below water lie, and that such grants do 
not extend beyond the exterior line as fixed by this 
Commission and only under such conditions and re¬ 
strictions in each instance as the Legislature may 
choose to impose for the improvement of navigation 
and commerce. 

(e) That where grants are made, as suggested in 
“d”, the grantee pay as a consideration for the grant, 
one-fourth of the appraised marketable value of the 
lands, the remaining three-fourths to be retained by 
the grantee as an inducement for making the im¬ 
provement. 

(f) That so much of the Whare Act as relates 
to the granting of licenses for improvement below 
low-water be repealed. 


98 


WATERWAYS OR NRW JRRSRY. 


(g) That a board or commission be created with 
discretion and power to investigate applications for 
lands under tide water, determine the value thereof 
and arrange the conditions to apply to all riparian 
grants. 

No definite action was taken on the report of the 
Commission appointed in 1864 until 1869, in which year 
the Legislature passed 

“A supplement to an act, entitled ‘an act to ascer¬ 
tain the rights of the State and of the riparian own¬ 
ers in the lands lying under the waters of the bay 
of New York, and elsewhere in this State, approved 
April eleventh, one thousand eight hundred and six¬ 
ty-four.’ ” 

This supplemental act was approved March 31, 1869.^ 

This act approved the exterior pierhead and bulkhead 
lines as proposed by the Commission of 1864, with one 
modification, as noted on page 170. 

It further provided for the appointment of four 
Commissioners, who were authorized to complete the 
work of the previous Commission. The act also' gives 
the Commissioners the power to execute leases in perpe¬ 
tuity to those holding legislative grants, as well as to 
grant, or lease, lands under tide waters. 

Since that time there have been passed by the Legis¬ 
lature numerous supplemental acts which either pertain 
to the administrative features, grant additional powers or 
define the duties and powers previously authorized. 

Under the New' Jersey Statutes the right of the owner 
of land on tide water to the tide lands is this: When 


^ Laws of New Jersey, 1869, p. 1017. 



WATERWAYS OF NEW JERSEY. 


99 


such lands are to be sold the Riparian Commissioners are 
directed to appraise them and, by way of preference, they 
are then to be offered to the riparian proprietors at the 
price thus fixed. He has no present right in the prop¬ 
erty. His privilege is defeasible at all times by the act 
and will of the State. 

As regards the rights and privileges of those purchas¬ 
ing from the State of New Jersey title to the land below 
high-water mark the following statement of the Riparian 
Commission is an apt summary of the situation as deter¬ 
mined by the several court decisions thereon:^ 

“He (the riparian grantee) secures the same 
rights, as far as he actually reclaims or improves it, 
as the purchaser of any piece of upland really se¬ 
cures. That is to say, as far as he fills in or docks 
his purchase. The courts have decided that until 
they are so reclaimed the tidal waters of the State 
are open to common use for fishing and navigation. 
With this provision the riparian grant belongs to the 
grantee, within the metes and bounds of his pur¬ 
chase, as absolutely as his field, his garden, or his 
city lot, and he may conve}^ it by sale to another per¬ 
son just as he may convey upland property. The 
only easement the general public can exercise is to 
fish or sail or row in the waters covering his ripa¬ 
rian purchase until it is reclaimed for such public use 
by bulkheads or wharves. It is in this respect close¬ 
ly analogous with public use for hunting and other 
purposes, of unfenced upland commons. The exer¬ 
cise of such a public easement cannot interfere with 
the rights of the owner to use his land under water 
in any way that he sees fit.^ It cannot be so em- 

^ Annual Report Riparian Commission, 1899, pp. 6-7. 

^Subject to such restrictions as the Legislature may place upon 
waters on navigable waterways in the exercise of its police powers. 



lOO 


WATERWAYS OR NEW JERSEY. 


ployed as to deprive him of any right of ownership 
and use.^ The absolute character of the grant made 
by the State follows as a corollary of the State’s 
absolute ownership of those lands under water. There 
is a vague idea, cherished with singular persistency 
in some minds, of some shadow of partial owner¬ 
ship in these riparian lands by the owner of the abut¬ 
ting upland. The idea has its root in conveniency of 
access of such owners to the waters covering these 
lands. But that adjacency is its only foundation. It 
gives him no more right to the State’s riparian prop¬ 
erty on one side of his land that it does to the farm 
or other realty of his neighbor on the other side.” 

“Conveniency of access to property conveys no 
title. The lands under the tide waters of the State 
belong to the whole people of New Jersey. The 
farmer in Warren county has as much right and in¬ 
terest in them as the oysterman of Cumberland or 
Ocean. That common ownership finds its equitable 
adjustment and distribution in the use of the public 
school fund, derived from the sale or lease of these 
riparian lands.” 

“The only advantage aside from adjacency that 
the abutting owner has over other residents of the 
State, in riparian lands fronting on his property, is 
the six months’ option that he is entitled to under 
the law for their purchase or lease.” 

In the earlier deeds of the Riparian Commission the 
grant reads to the exterior line, as now, or hereafter, es¬ 
tablished; or, in other words, is a flexible one. In many 
instances exterior lines have been established by the 
State authority in places where the War Department has 

^ Under the United States Constitution the federal authorities may 
take the same without compensation, for the improvement of naviga¬ 
tion or for structures in aid of navigation. (See p. 113.) 



WATERWAYS OR NEW JERSEY. lOI 

not established any harbor line. Subsequently, the Fed¬ 
eral authorities have fixed harbor lines which may be in¬ 
side the exterior line as established by the Riparian Com¬ 
mission, in which case the grantee is thereby prohibited 
from a full development of his purchase. In later riparian 
grants the exterior lines as established at the time form 
the boundary of the grant, and if at any future time 
this exterior line is pushed further into the stream it be¬ 
comes necessary for the grantee, to hold title to the soil 
under water between the old and new lines, to purchase 
this additional right from the State. There is no redress 
against the State as regards the loss of lands through the 
Federal Government receding the pierhead line. 

Wharf Rights 

The question whether a wharf is public or private de¬ 
pends upon the purpose for which it was built, the use to 
which it has been applied, the place where located and the 
nature and character of the structure. Where a wharf has 
been constructed upon private property or upon lands 
under water, the rights to which have been secure from 
the State, through lease or grant, it is a private wharf. 
It cannot be used by the public without the owner’s con¬ 
sent and even though the owner shall permit of its use 
by others, he does not thereby dedicate it to public use 
or give the right to use without his permission.^ 

On the other hand where wharves, belonging to an 
individual, are thrown open to the general public they 
become subject to all the limitations and obligations of 


^ See O’Neil vs. Aiinett (1859), 3 Butcher, p. 290. 



102 


WATI^RWAYS 0^^ NEW JERSEY. 


public usage. Any vessel may moor to such public wharf, 
without any special permission, subject, however, to 
wharfage charges. It cannot remain there beyond a reas¬ 
onable time for the purpose of loading or discharging 
freight or passengers, without special permission. The 
wharfage or tonnage charges which shall be made for 
the use of the facilities of either a private or public wharf 
must be reasonable and open to all without discrimina¬ 
tion.^ 

^Cannon vs. New Orleans (1874), 20 Wall, p. 577; Packet Co. vs. 
St. Louis (1877), 100 U. S., p. 423; Guy vs. Balto., loo U. S., p. 434; 
Packet Co. vs. Catlettsburg, 105 U. S., p. 559. 



ALLUVION 


Natural accretions or “alluvion,” as it is called, con¬ 
sists of an increase per projectionem, which if slow and 
secret, and is so gradually and insensibly occasioned as 
to render it impossible to perceive how much is added in 
each moment of time, belong to the riparian proprietor to 
whose land the accession is made; and none but pro¬ 
prietors can have a claim to it. Blackstone says : “As to 
lands gained from the sea either by alluvion, i. e., by the 
wa^shing up of sand or earth, so as in time to make terra 
tirrm; the law is held to be, that if this gain be by little 
and little, by small and imperceptible degrees—it shall go 
to the owners of the lands adjoining, for de minimis non 
curat lex; but if the alluvion be sudden and considerable, 
the land shall go to the King as lord of the sea.^ 

The dicta stated in Camden and Atlantic Land Com¬ 
pany V. Lippincott (1883),^ was that in grants of lands 
lying along the sea coast, the parties act with knowledge 
of the variety of changes to which all parts of the shore 
are subject. The grantee, by such boundary, takes a free¬ 
hold that shifts with the changes that take place, and is 
obliged to accept the situation of his boundary by the 
gradual changes to which the shore is subject. He is sub¬ 
ject to losses by the same causes that may add to his 
boundary; and as he is without remedy for his loss, so is 
he entitled to the gains which may arise from the alluvial 
formations, and he will, in such case, hold by the same 
boundary, including the accumulated soil. 

^Angell on Tide Waters (2d Ed.), pp. 249-251. 

^ 16 Vroora, p. 405. 

(103) 



104 wate:rways or NRW JRRSRY. 

In this connection the case of Ocean City Association 
V. Shriver/ (1900) is of particular interest. The facts 
were substantially as follows: 

In 1880 the Ocean City Association, an incorporated 
land company, or association, purchased a large tract of 
land in Ocean County. Shortly thereafter the associa¬ 
tion made and filed a map on which lots and streets were 
laid out, and in 1883 they caused a more extensive map 
to be made, and filed a copy in the County Clerk’s office. 
On this map Ocean avenue was shown parallel with and 
at some distance from the ocean, and streets were laid out 
extending from Ocean avenue westerly. The line of high- 
water was shown on the map as 250 feet east from the 
easterly line of Ocean avenue. Between the high-water 
line and Ocean avenue was a space of unplotted land, 
which had not been laid out into lots for sale. In 1884 
they sold one of the plotted lots on the westerly side of 
Ocean avenue, the particular lot being specified on the 
map of 1883. By 1^95 the ordinary high water had 
carried away the unplotted land and one-half of the ave¬ 
nue in front of this lot. Subsequently the ocean began 
to recede, and the high-water line was shown upon the 
map of the Riparian Commission in Ocean avenue. The 
defendant in error obtained in 1897 a riparian grant of 
a strip of land in front of his lot and extending to the 
exterior line as established by the Commission. 

The Ocean City Association, on contesting this grant, 
obtained decision in the Court of Errors and Appeals in 
their favor. It was held by the court in an opinion by 
Mr. Chief Justice Depue, as follows: 


^ 35 Vroom, p. 550. 



WATERWAYS OE NEW JERSEY. IO5 

1. That to entitle a proprietor to the right of ac¬ 
cretion, he must be a riparian owner, and his land 
must adjoin the ordinary high tide. If a strip 
of land, however small, intervenes between the 
premises and the water at ordinary high tide, its 
owner will not be entitled to the accretion. 

2. The right of alluvion depends upon the facts 
of the contiguity of the estate to the water, and to 
give a right to accession and accretion, there must 
be an estate to which the accession can attach. 

3. The doctrine whereby title is acquired by ac¬ 
cretion is founded on the principle of compensation. 
The proprietor of lands having a boundary on the 
sea is obliged to accept the alteration of his bound¬ 
ary by the changes to which the shore is subject. 
He is subject to the loss by the same means that may 
add to his territory; and, as he is without remedy 
for his loss, so he is entitled to the gain which may 
arise from alluvial deposit. 

4. The defendant’s grant by the Riparian Com¬ 
missioners was made pursuant to the act of 1871. 
That act empowers the Riparian Commissioners to 
make grants of the land under water to riparian 
owners only, and a grant by the Commissioners un¬ 
der that act to any one else would be ultra vires. 
The case, therefore, between these parties turns 
wholly on the condition of the line of ordinary high 
tide in 1884. If the original purchaser of this lot 
did not thereby become a riparian owner, then a sub¬ 
sequent transfer of the property could not invest the 
purchaser with such title or estate in the accretion 
caused by the changes on the shore, and the grant 
of the riparian commissioners, in 1897, was a 
nullity. 


io6 


WATERWAYS OE NEW JERSEY. 


It is generally conceded that the riparian title attaches 
to subsequent accretions to the land, effected by the grad¬ 
ual and imperceptible operation of natural causes. By the 
common law sudden accretions to the land on navigable 
waters, produced by annual floods, or by artificial means 
from the bed of the river, belong to the Crown; but as 
the only waters recognized in England as navigable are 
tide-waters, it has been contended that the above law is 
applicable to tide-waters only. Owing to the different 
conditions existing in England and America regarding 
what shall constitute a navigable stream, it is now ac¬ 
cepted that the rule applies to all navigable waterways, 
whether affected by tidal influences or not. 

In the case of submerged lands, where accretions ex¬ 
tend from the shore into the river, they belong to the 
owner of the upland, but if the accretions form in the 
river and extend towards, but do not adjoin the shore, the 
title is in the State, or its grantee, or lessee.^ In the 
case of unnavigable fresh water streams, all islands 
formed in the bed of the waterway become the property 
of the riparian proprietors. When an island so formed 
lies partly on one side of the thread of the stream and 
partly on the other, the land is divided between the 
several riparian proprietors according to the respective 
length of their lands along the original thread, or medium 
line between the banks of the stream in its natural stage. 
When the island is formed by a sudden change in the 
course of the river, or by the violent action of the sea, as 
by encircling a field or cutting off a point of land or 
peninsula, it remains the property of the former owner. 

^Linthicum vs. Cohn, 64 Md., p. 439; 53 Am. Rep., p. 219; S. P. 
Posey vs. James, 7 Lea, (Tenn.), p. 98. 



Federal Authority Over Navigable Waters 

Having traced the origin of title to, and general sup¬ 
ervision over, the soil along and in the navigable water¬ 
ways in the State of New Jersey, the next question is as 
to the rights of those purchasing, or leasing, these lands 
from the State as against the paramount right of the 
Federal government. 

According to Article I, Section VIII, clause 3, of the 
United States Constitution, Congress shall have power 
“Xo regulate commerce with foreign nations, and among 
the several States, and with the Indian tribes.” This is 
the so-called '‘Commerce Clause” and has been given the 
most liberal construction by the courts. The authority 
of Congress under these powers extends under a strict 
construction of the Constitution to such streams, or 
waterways, as are navigable, and the first question, there¬ 
fore, is to determine exactly what constitutes a navigable 
waterway. 

Test of Navigability 

Congress has from time to time declared certain 
streams navigable and has also withdrawn other streams 
wholly, or in part, from the navigable list. When such 
water courses are specifically declared non-navigable they 
come under the exclusive jurisdiction of the State in 
which they lie, or through which they flow. The best 
statement as to whether a stream is navigable or not 
navigable is that by Mr. Justice Field, in the case of The 
Daniel Ball, (1870).^ 


^ 10 Wall, p. 563. 


(107) 



io8 


WATERWAYS OR NEW JERSEY. 


“The doctrine of the common law as to the navi¬ 
gability of waters has no application tO' this country. 
Here the ebb and flow of the tide do not constitute 
the usual test, as in England, or any test at all of the 
navigability of waters. There no waters are navi¬ 
gable in fact, or, at least, to any considerable extent, 
which are not subject to the tide, and from, this cir¬ 
cumstance tide water and navigable water there sig¬ 
nify substantially the same thing. But in this country 
the case is widely different. Some of our rivers are as 
navigable for as many hundred miles above as they 
are below the limits of tide water, and some of them 
are navigable for great distances by large vessels, 
which are not even affected by the tide at any point 
during their entire length. A different test must, 
therefore, be applied to determine the navigability of 
our rivers, and that is found in their navigable capac¬ 
ity. These waters must be regarded as public navi¬ 
gable rivers in law which are navigable in fact. And 
they are navigable in fact when they are used, or are 
susceptible of being used, in their ordinary condition, 
as highways for commerce over which trade and 
travel are or may be conducted in the customary 
modes of trade and travel on water.” 

The court has also decided that if a stream is capable 
of floating logs or timbers to market such constituted 
commerce, within the meaning of the Constitution, and, 
therefore, such stream was navigable in fact.^ Further¬ 
more, in U. S. V. The Montello, the United States Su¬ 
preme Court decided that it was not necessary for a 
stream to be navigable through its entire length to come 
under the classification of a navigable waterway. It 

Herman vs. Beef Slough Mfg. Co. (1878), 8 Bissell (U. S.), p. 
334; I Fed. Rep., p. 145. 



WATERWAYS OR NEW JERSEY. IO9 

might contain obstructions such as ‘"rapids” or “falls” and 
yet if it carried interstate commerce on any portion of it, 
it was “navigable in fact,” so far as pertained to those 
parts over which the public can pass and repass.^ 

A river is, therefore, a navigable water of the United 
States when it forms by itself, or by its connection with 
other waters, a continued highway over which commerce 
is, or may be, carried on with other States or foreign 
countries in the customary modes in which commerce is 
conducted by water. If a river, lake, or pond, either in 
itself or by connection with other waters, does not form 
a highway for interstate or foreign commerce, but is 
navigable between different places within the State, it is 
not navigable water of the United States, but only a 
navigable water of the State. For instance. Green Pond, 
in Morris county, is navigable, but it does not in connec¬ 
tion with any other body of water form a navigable water¬ 
way for interstate traffic, and is, therefore, wholly a 
navigable water of the State of New Jersey. Any im¬ 
provements thereon would be entirely and exclusively 
within the jurisdiction of the State of New Jersey. On 
the other hand, the Morris Canal, in Hudson county, is 
a navigable waterway of the United States and subject 
to all the federal rules and regulations. 

While there was no question as to the powers of Con¬ 
gress to exercise control over the navigable portions of 
waterways, yet the right of the Federal government to 
supervision of the parts of such streams as are beyond the 
limits of navigation was, until about 1890, doubted in 
many quarters. By an act of Congress in 1890,^ it was 

^ U. S. vs. The Montello (1874), 20 Wall, 434. 

^26 U. S. Statutes, p. 454. 



no WATERWAYS OR NRW JRRSRY. 

declared “That the creation of any obstruction not affirm¬ 
atively authorized by law to the navigable capacity of any 
waters, in respect to which the United States has juris¬ 
diction, is hereby prohibited.” This immediately brought 
the entire question of Federal authority before the 
United States Supreme Court in the case of U. S. v. Rio 
Grande Dam & Irrigation Co. (1899),^ and in the opin¬ 
ion of the court, delivered by Mr. Justice Brewer, it was 
declared: 

“It is not a prohibition of any obstruction to the 
navigation, but any obstruction to the navigable 
capacity, and anything wherever done or however 
done, within the limits of the jurisdiction of the 
United States, which tends to destroy the navigable 
capacity of one of the navigable waters of the United 
States, is within the terms of the prohibition. * * * 
And it would be to improperly ignore the scope of 
the language to limit it to the acts done within the 
very limits of navigation of a navigable stream.” 

Since the announcement of this decision, the authority 
of the United States over every portion of a stream which 
is navigable in part, or over any of its tributaries, has 
been generally admitted, where such stream either in it¬ 
self, or by connection with other water courses forms a 
highway for interstate commerce. 

The authority of Congress as ceded by the several 
States to the United States by the Federal Constitution 
consisted of certain powers of jurisdiction and control, 
“but property itself was not granted to the general gov¬ 
ernment.” We have examined the rights of the Federal 


^ 174 U. S., pp. 690-699. 



WATj:rWAYS of NFW JKRSFY. Ill 

authorities to supervise constructive works or improve¬ 
ments of navigable waterways, but the title to land under 
water which may be required for carrying out these pro¬ 
visions still remains in the sovereign state, or its grantee, 
the judicial interpretation being that the United States 
was given by the Constitution an easement in such lands 
only in so far as it might be required to carry out the con¬ 
stitutional provisions. 

Congress under the power to regulate commerce may 
assume, as it has already assumed, the power to regulate 
navigation over navigable waters within the States as to 
prohibit its obstruction and to cause the removal of ob¬ 
structions thereto, and such power when exercised is 
“conclusive of any right to the contrary, asserted under 
the State authority.” 

In the case of Gilman v. Philadelphia,^ the court said, 
respecting the control of navigable waters for commerce: 

“For these purposes they (the soil under the 
water) are the public property of the United States 
and subject to all the requisite legislation of con¬ 
gress.” 

Again in the case of Pollard’s Lessee v. Hagan,^ the 
court said: 

“The right of eminent domain over the shores and 
the soil under navigable waters for all municipal pur¬ 
poses belongs exclusively to the States within their 
respective territorial jurisdiction. * * * But in 

the hands of the States this power can never be used 
so as to affect the exercise of any national right of 


^3 Wall pp. 713-725* 
^ 3 Howard, p. 230. 

8 



112 


wate:rways or NRW JRRSRY. 


eminent domain or jurisdiction with which the 
United States has been invested by the Constitution/' 

The “Tuckerton Creek, (N. J.), oyster bed contro¬ 
versy” aptly shows the paramount authority assumed by 
the Federal Government over the beds of navigable water¬ 
ways. By an act of Congress of March 2, 1907, provi¬ 
sion was made for dredging a channel at the mouth of 
Tuckerton Creek, which meant the destruction of several 
oyster beds located within the field of operation. Title to 
these submerged lands was held through lease from the 
State Oyster Commission for the district of Ocean coun¬ 
ty, and the question arose as to the necessity of extin¬ 
guishing the leasehold interests of the lessees. 

In an opinion by the Judge Advocate General of the 
United State Army, it was held that the Federal Govern¬ 
ment had the right to take these lands, without compensa¬ 
tion, for the improvement of the waterway to make it 
subserve the purposes of commerce. On the other hand, 
the Attorney-General of New Jersey advised that: 

‘'Such an act on the Government’s part would be a 
taking of private property without compensation first 
paid, and therefore in violation of the Constitution, 
both of the United States and of the State of New 
Jersey.” 

Which opinion was correct in the case was never judi¬ 
cially determined, because certain parties, interested in 
securing the deepened channel, bought up the leases and 
donated them to the State, which thereupon withdrew its 
objection to the proposed work. 


WATERWAYS OR NEW JERSEY. II3 

In exercising this power the United States can not 
divest rights of title or occupation in a State or individ¬ 
uals, but these rights are left to be enjoyed as before, 
subject, however, to the paramount public right of free¬ 
ing navigation from obstruction possessed and exercised 
by the United States through Congress. In the execu¬ 
tion of the laws relating to obstructions to navigation the 
Secretary of War has no general authority, but only such 
as may have been vested in him by legislation of Con¬ 
gress. 

As between the United States and a State, the soil of 
the bed of navigable waters and of the shores of tide 
waters below high-water mark, or—on rivers not reached 
by the tide—the soil of the shores below the ordinary 
water line (as not affected by freshet or unusual drought) 
belongs to the State. 

The courts have held that while the title to submerged 
lands, under a navigable water of the United States and 
within the limits of a State, belongs to the State and may 
by it be granted to individuals, such grants are, however, 
subject to the right of the United States to take the same 
without compensation for the improvement of navigation 
or for structures in aid of navigation.^ 

Congress has very wisely provided that no Federal 
appropriations for river and harbor improvement work 
shall be used for dredging inside of established harbor 
lines (Act, July 13, 1892). This, of course, will not ap¬ 
ply to Federal appropriations which specifically provide 

^Wisconsin vs. Duluth, 96 U. S., p. 379; U. S. vs. City of Moline, 
82 Fed. Rep., p. 592; Leovy vs. U. S., 92 Fed. Rep., p. 344; U. S. vs. 
Chandler-Dunbar Co., 229 U. S., p. 53. 



114 WATERWAYS OE NEW JERSEY. 

for improvements on or adjacent to Federal reservations, 
or where necessary to carry on the business of the United 
States Government. 

As showing the far reaching effect of the authority of 
the United States over waterways, the cases of the Erie 
and Atlantic Basins in New York Harbor are interesting. 
These basins are private property, but they are also on 
navigable waters of the United States and the owners of 
the soil under the water hold the title subject to the right 
of the public to navigate such waters and are, therefore, 
not empowered to fill the basins and deprive the public of 
their use. 

In the interest of navigation, and for the protection 
of the waterways of the country. Congress has passed 
comprehensive laws relating to the placing of structures 
of various kinds therein. Section lo of the Federal Act 
of March 3, 1899, makesi it unlawful to construct any 
wharf, pier, etc., in any navigable water of the United 
States outside established harbor lines, or where no har¬ 
bor lines have been established, except on plans approved 
by the Chief of Engineers and authorized by the Secre¬ 
tary of War. A permit under this statute confers upon 
the grantee no right, or franchise, for the structure, or 
interest in the shore or bed of the stream where it is to 
be built, but simply makes the authority required therein 
a condition precedent to the exercise of such right as an 
applicant may have with respect to its effect upon com¬ 
merce and navigation.^ It does not relieve the grantee 
of complying with any State or local law or regulation. 


^ Cummings vs. Chicago, i88 U. S., p. 410. 



WATERWAYS OF NEW JERSEY. II5 

The Federal authorities do not claim, nor exercise, 
any control or supervision of what may be called the po¬ 
lice powers of the State. For instance, the War Depart¬ 
ment will not withhold its approval because the structure 
would violate the local health regulations, or prove detri¬ 
mental to private property. The only interest of the 
Federal Government in such matters is the effect the struc¬ 
ture will have upon navigation, leaving the questions com¬ 
ing properly under the police powers to the jurisdiction 
of the State or municipality. 

Under the several acts of Congress jurisdiction over 
the authorization and construction of bridges over navig¬ 
able waters entirely within the State rests with the State, 
subject to the approval by the Chief of Engineers and 
Secretary of War as to the location and plans therefor. 
Such approval of location is merely to determine as to 
whether the structure would be an unreasonable obstruc¬ 
tion to navigation. In the case of interstate streams all 
bridges must first be specifically authorized by Congress. 
The War Department is directed to supervise their con¬ 
struction to the extent of seeing that the various pro¬ 
visions of the law under which the structure was au¬ 
thorized are carried out, both as to location, width of 
span, and time limit within which it must be completed. 
As to the last condition no authority is given the Secre¬ 
tary of War to grant an extension, this resting entirely 
with Congress. 

Under Act of March 3, 1899, the Secretary of War 
is given authority, where any bridge constructed over any 
navigable waterway of the United States is an unreason¬ 
able obstruction to the free navigation of such water on 


Il6 WATERWAYS OE NEW JERSEY. 

account of insufficient height, width of span or otherwise, 
or where there is difficulty in passing the draw opening, 
or draw span, of such bridge by rafts, steamboats, or 
other water crafts, to cause the same to be made reason¬ 
ably free to navigation. This applies to all bridges, 
whether constructed before the War Department assumed 
jurisdiction over their construction or constructed under 
Federal sanction. It shall be the duty of the Secretary, 
after due notice and a public hearing, “to specify the 
changes recommended by the Chief of Engineers that are 
required to be made” so as to obviate the dififculty. The 
power of Congress to regulate bridges over navigable 
waters is paramount, and where it comes into conflict with 
that of a State, the latter necessarily becomes ineffective. 

Much confusion has arisen as regards the scope and 
extent of the Federal jurisdiction over repairs to bridges 
crossing navigable streams which lie wholly within a 
single State. Where such repairs will seriously impair 
navigation, or constitute a decided modification or re¬ 
building of an existing bridge originally built under a 
Federal permit, or even prior to the United States assum¬ 
ing control over this feature of navigable waterways, the 
approval of the War Department must be had. It is held 
that such a modification or reconstruction practically 
means a new structure and, as such, would come within 
the scope of section 9 of the Act of Congress of March 
3, 1899. If, on the other hand, the repair work con¬ 
sists in making only ordinary repairs, without in any way 
modifying the general construction and such repair work 
can be done without interference to navigation, no Fed¬ 
eral permit is required. On streams lying wholly with- 


wate:rways of nfw Jersey. 117 

in the State, however, the Legislature may require that 
such alterations shall have the sanction or approval of the 
State’s properly constituted officials to be a legal act. 

Federal Harbor Lines 

Under Act, March 31, 1899, the Secretary of War is 
authorized, whenever essential to the preservation and 
protection of harbors to establish harbor lines, beyond 
which no structures shall be built, or deposits made, ex¬ 
cept under such regulations as he shall prescribe. These 
lines may be established in parts of a harbor not at the 
time navigable, upon the assumption that the authority 
of the United States extends to all parts of such harbor. 
Furthermore, the fact that harbor lines have been estab¬ 
lished does not prevent such lines being subsequently ex¬ 
tended further into the stream or drawn back, that is, 
within the position previously adopted, if the interests of 
navigation so require. 

The authority of the United States in even the non- 
navigable portions of waterways and harbors is aptly 
illustrated in the case of Jamaica and Sheepshead Bays, 
where in 1911 the Federal Government established harbor 
lines below high-water mark at points where the same 
were not navigable. It was held by the Judge Advocate 
of the United States Army, that since the general gov¬ 
ernment could improve all or any part of the waterways 
by dredging or other works, its authority could not be 
limited to the navigable portions, but extended to every 
part thereof. In order to preserve and protect such 
waterways for the development of future channels, or in 
the interests of navigation, the United States claims the 


Il8 WATERWAYS OR NEW JERSEY. 

right to establish such harbor lines, below high-water 
mark, as its engineers after due investigation deem jus¬ 
tifiable, and any title of the State, or its grantee, to sub¬ 
merged lands was subordinate to the easement of the 
United States to take such lands without compensation to 
the owners.^ 

In the case of Philadelphia Co. v. Stimson,^ where 
harbor lines had been established in the Ohio River at 
Brunot’s Island in 1895, improvements having 

been made by the riparian owners in conformity there¬ 
with, it was decided in 1907 to rnove the line previously 
established back to the high-water mark, the Court held 
that such change was within the authority of the Secretary 
of War, and “that that officer did not exhaust his author¬ 
ity in laying the lines first established in 1895, but was en¬ 
titled to change them, as he did change them in 1907, in 
order tO' more fully preserve the river from obstruction.” 
The Court said that the title to the soil under navigable 
waters was “subject to the authority of Congress under 
the Constitution of the United Statesand that “the ex¬ 
tension of this power could not be fettered by any grant 
made by the State of the soil which formed the bed of 
the river, or by any authority conferred by the State for 
the creation of obstruction of its navigation.” 

While the United States can pass laws prohibiting the 
erection of any structures on navigable waterways beyond 
certain prescribed limits, this does not mean that the 
harbor lines which may be established under State au- 

^ See Digest of Opinion of Judge Advocate General U. S. A., p. 
777, and Philadelphia Co. vs. Stimson, 223 United States, p. 605. 

^ 223 United States, p. 605. 



wati:rways or new jersey. 119 

thority are nullified, except where such State lines are 
“outshore” of those fixed by Federal authority. In New 
Jersey, the Riparian Commission has established in many 
localities “exterior lines for solid filling,” and has sold 
or leased certain lands beyond the line of high-water. In 
some cases the lines established by the War Department 
are inside of such State lines, in which cases the purchaser 
loses the full use of his purchase or lease, but he has no 
redress. In New Jersey the right to build under a Fed¬ 
eral permit can not extend beyond the line established by 
the Riparian Commission,^ since title to all the soil under 
water beyond the latter line is in the State and any struc¬ 
ture erected beyond the metes and bounds of the riparian 
grant is a purpresture and a public nuisance. Further¬ 
more, all developments, or improvements, of every kind 
and description must have the approval of the New Jersey 
Harbor Commission.^ Except in the New York Harbor, 
no Federal permit is required to build any wharf, pier or 
bulkhead within United States harbor lines where such 
have been established, but this must not be construed as 
waiving the necessity of obtaining proper State and local 
permission. 

In later years it has been the policy of the Riparian 
Commissioners of New Jersey, where the Federal harbor 
lines have been established outside of those fixed by the 
State, to promptly make the State lines correspond with 
the former. 


^ Now (1915) the Department of Commerce and Navigation. 









CANALS IN NEW JERSEY 


During the latter part of the eighteenth and early 
years of the nineteenth century, the demand for better 
transportation facilities became so urgent that there 
sprung up all over the United States an active and ener¬ 
getic agitation for improved waterways and canal build¬ 
ing. The strongest sentiment was aroused in New York 
State and numerous petitions were circulated demanding 
that the various inland lakes and rivers be connected with 
the- ocean. This agitation finally culminated in the build¬ 
ing of the Erie Canal, connecting Buffalo with the Hud¬ 
son river. It must be remembered that in the early days 
the chief settlements were along waterways, which in 
some cases had direct connection with the ocean, while in 
other cases there was no navigable connection with the 
sea ports. 

In a miemorial, dated i8i6, addressed to the Legisla¬ 
ture of New York, advocating a canal “between the great 
western lakes and the tide waters of the Hudson,” the 
value of internal water communication is so aptly stated 
that the following extract is deemed worthy of notice: 

“The improvement of the means of intercourse be¬ 
tween different parts of the same country, has always 
been considered the first duty and the most noble em¬ 
ployment of government. If it be important that the 
inhabitants of the same country should be bound to¬ 
gether by a community of interests, and a reciproca¬ 
tion of benefits; that agriculture should find a sale for 
its productions; manufactures a vent for their fab- 

(I2I) 


WATERWAYS OE NEW JERSEY. 


rics; and commerce a market for its commodities; 
it is your incumbent duty to open, facilitate, and im¬ 
prove internal navigation. The pre-eminent advan¬ 
tages of canals have been established by the unerring 
test of experience. They unite cheapness, celerity, 
certainty and safety, in the transportation of com¬ 
modities. It is calculated that the expense of trans¬ 
porting on a canal amounts to one cent a ton per 
mile, or one dollar a ton for one hundred miles; 
while the usual cost by land conveyance is one dollar 
and sixty cents per hundred weight, or thirty-two 
dollars a ton for the same distance. The celerity and 
certainty of this mode of transportation are evident. 
A loaded boat can be towed by one or two horses at 
the rate of thirty miles a day. Hence, the seller or 
buyer can calculate with sufficient precision on his 
sales or purchases, the period of their arrival, the 
amount of their avails, and the extent of their value. 
A vessel on a canal is independent of winds, tides, 
and currents, and is not exposed to the delays at¬ 
tending conveyances by land; and with regard to 
safety, there can be no competition. The injuries to 
which commodities are exposed when transported by 
land, and the dangers to which they are liable when 
conveyed by natural waters, are rarely experienced 
on canals. In the latter way, comparatively speak¬ 
ing, no waste is incurred, no risk is encountered, and 
no insurance is required. Hence, it follows that can¬ 
als operate upon the general interests of society, in 
the same way that machines for saving labour do in 
manufactures; they enable the farmer, the mechanic, 
and the merchant, to convey their commodities to 
market, and to receive a return at least thirty times 
cheaper than by roads. As to all the purposes of bene¬ 
ficial communication, they diminish the distance be- 


WATERWAYS OR NEW JERSEY. 


123 


tween places, and therefore encourage the cultivation 
of the most extensive and remote parts O'f the coun¬ 
try. They create new sources of internal trade, and 
augment the old channels, for the more cheap the 
transportation, the more extended will be its opera¬ 
tion, and the greater the mass of the products of the 
country for sale the greater will be the commercial 
exchange of returning merchandise, and the greater 
the encouragement to manufacturers, by the increas¬ 
ed economy and comfort of living, together with the 
cheapness and abundance of raw materials; and 
Canals are consequently advantageous to towns and 
villages, by destroying the monopoly of the adjacent 
country, and advantageous to the whole country; 
for though some rival commodities may be intro¬ 
duced into the old markets, yet many new markets 
will be opened by increasing population, enlarging 
old and erecting new towns, augmenting individual 
and aggregate wealth, and extending foreign com¬ 
merce. 

“The prosperity of ancient Egypt, and China, may 
in a great degree be attributed to their inland navi¬ 
gation. With little foreign commerce, the former 
of those countries, by these means attained, and the 
latter possesses, a population and opulence in propor¬ 
tion to their extent unequalled in any other. And 
England and Holland, the most commercial nations 
of modern times, deprived of their canals, would lose 
the most prolific sources of their prosperity and 
greatness. Inland navigation is, in fact, to the same 
community what exterior navigation is to the great 
family of mankind. As the ocean connects the na¬ 
tions of the earth, by the ties of commerce, and the 
benefits of communication, so do lakes, rivers, and 
canals operate upon the inhabitants of the same coun- 


124 WATERWAYS OE NEW JERSEY. 

try; and it has been well observed, that ‘were we to 
make the supposition of two states, the one having all 
its cities, towns and villages upon navigable rivers 
and canals, and having an easy communication with 
each other; the other possessing the common con¬ 
veyance of land carriage, and supposing both states 
to be equal as to soil, climate and industry; commod¬ 
ities and manufactures in the former state might be 
furnished thirty per cent, cheaper than in the latter; 
or in other words, the first state would be a third 
richer, and more affluent than the other.’ ” 

The earliest canal legislation in New Jersey was in 
1800, when the Governor was empowered to incorporate 
a company to shorten the navigation of Salem Creek. 
This was followed by acts granting charters to canal 
companies in Cumberland County and several to cut 
canals across Manasquan Beach and to connect Barnegat 
Bay with the ocean or with Manasquan River. These 
were mostly local projects, and may be passed over with¬ 
out further comment, as they have only an indirect bear¬ 
ing on transportation questions as related to State, or in¬ 
terstate, commerce. The first waterway development of 
a national character was the proposition to connect the 
two largest cities of the country—New York and Phila¬ 
delphia—by a canal, and the opening up of transporta¬ 
tion facilities to bring the coal fields of Pennsylvania into 
communication with New York and the New England 
States; the former was finally consummated in the build¬ 
ing of the Delaware and Raritan Canal and the latter 
through the construction of the Morris Canal. 


WATERWAYS OF' NEW JERSEY. 


125 


Delaware and Raritan Canal 

The agitation for the Delaware and Raritan Canal be¬ 
gan about 1804, when the project to connect the Dela¬ 
ware and Raritan Rivers was first earnestly considered. 
Gordon^ says it was ‘‘a favourite project—with specula¬ 
tors desirous to deal in a marketable commodity; with 
capitalists seeking for safe and profitable investments; 
and with many statesmen of New Jersey, who believed 
they saw, in it, the means of creating a permanent and 
large revenue for the State, which would forever relieve 
her citizens from taxation, for the ordinary support of 
government.” 

The Legislature chartered the New Jersey Navigation 
Company in 1804, which proposed joining the Delaware 
River and Raritan Bay by canalizing certain small creeks 
and rivers and uniting them by a short canal dug in solid 
ground. The Assanpink Creek and Stoney Brook Creek, 
together with the Millstone River and Raritan River, 
were to form the principal portion of the route. The 
highest intermediate ground between Assanpink and 
Stoney Brook Creeks was estimated to be fifty feet above 
tide-water. The only obstacles to be encountered were 
the ^‘sand hills” west of New Brunswick. Nothing came 
of this venture, as it was found to be impossible to raise 
sufficient funds. The agitation continued, and in 1816 
Governor Dickerson, in his annual message to the Legis¬ 
lature, said: 

“I must beg leave to call attention to a projected 
improvement of great national importance. I mean 


^ Gazetteer of the State of New Jersey (1834), pp. 26-27. 



126 wate:rways or NRW JRRSRY. 

the construction of a canal to connect the waters of 
the Delaware River with those of the Raritan. 

“We have the most satisfactory evidence that the 
expense of constructing such a canal, on the most 
practicable route, would be but a small proportion 
of the immense advantage to be derived from it. It 
would form an important link in that vast chain of 
internal navigation which our country admits of, 
and which will, at some future period, afford us 
security in war and an abundant source of wealth in 
peace, while it will form a permanent bond of union 
among the Atlantic States.” 

As a result of this plea, a State commission, under 
John Randel, Jr., made an examination and survey of a 
route for a canal, and again, in 1823, another State com¬ 
mission, headed by Lucius Q. C. Elmer, in conjunction 
with a Federal Board of Internal Improvements, of which 
General Bernard was the head, made another survey and 
report upon the feasibility of a canal route connecting the 
Delaware and Raritan. The report of the board of 
United States Engineers will be found in H. R. Doc. No. 
482, 55th Congress, 2d session. 

In 1824 a private company was authorized to con¬ 
struct the canal, but the state of trade and “inexperience 
in works of this character prevented its execution.” At 
a later date another joint stock company was organized 
and paid the State of New Jersey $100,000 for the priv¬ 
ilege of building the canal, but, failing tO' obtain the 
assent of Pennsylvania to the use of the waters of the 
Delaware, had to abandon the project, and their premium 
was returned. Gordon says:^ “Many citizens of the 


^Gazetteer of the State of New Jersey (1834), PP* 26-27. 



WATERWAYS OR NEW JERSEY. 


127 


State rejoiced in this failure, by which the power of mak¬ 
ing the canal reverted to her; anticipating that she would 
immediately use it. To this end, many petitions were 
presented to the Legislature at their session of 1828-29; 
and a committee appointed thereon made an able and 
elaborate report, accompanied by a bill, authorizing the 
canal to be constructed by the State.” 

In the meantime the opposition to any canal assumed 
a serious attitude, because it was thought that its build¬ 
ing would mean the decline in the patronage of the stage 
lines and various road houses, which for over a quarter 
of a century had enjoyed a lucrative trade from the trav¬ 
elling public. 

The building of a railroad from New York to Phila¬ 
delphia was also receiving considerable attention in dif¬ 
ferent parts of the State, and it was soon apparent that 
if any legislation was to be obtained for a canal or rail¬ 
road, it would be necessary for the partisans of each 
project to combine their interests and by a united effort 
obtain what each desired from the Legislature. 

Nothing was done with the suggestion of the commit¬ 
tee of 1828-29 regarding the building of a canal, but, in¬ 
stead, on February 4, 1830, an act was passed again 
placing the canal project in the hands of a joint stock 
company, known as the Delaware and Raritan Canal 
Company, upon what, at the time, appeared to be very 
favorable terms to the State, and on the same day an act 
was passed incorporating the Camden and Amboy Rail¬ 
road and Transportation Company. 

Among the conditions in the canal bill was one re¬ 
quiring the Canal Company to pay to the State, in lieu 
9 


128 


wate:rways or NRW JKRSRY. 


of any taxes or imports, a transit duty of eight cents for 
each passenger and eight cents for each ton of mer¬ 
chandise transported thereon, except coal, lumber, wood 
and other low priced articles, for which two cents per ton 
was to be paid. The company was authorized to collect 
a toll for the transportation of every species of property 
not to exceed four cents per ton-mile and not more than 
five cents per mile for the carrying of each passenger on 
the canal; on the feeder the tolls were to be one-half of 
those on the main canal. The canal was to be 50 feet 
wide on the water line and five feet deep, subsequently, 
by act of February 3, 1831, increased to 75 feet width 
and seven feet depth with locks 100 feet long and twenty- 
five feet wide. At the first meeting of the Canal Com¬ 
pany, Robert F. Stockton was elected president, John R. 
Thompson, secretary, and James Nielson, treasurer. 

With the commencement of work on this canal began 
an era of “railroad and canal interference” in New Jer¬ 
sey politics, which was a serious set-back to further 
waterway development. There was a restriction in the 
original charter, which provides that no competing 
canal should be built within five miles of any point of the 
canal. After the canal and railroad companies had each 
perfected their organizations, it was found that capital¬ 
ists were disinclined to subscribe to canal stock, and it 
was soon decided that a consolidation of the two enter¬ 
prises would prove advantageous to both. The Legisla¬ 
ture, therefore, was urged to permit a combination of the 
two companies, and in 1831 the famous “Marriage Act” 
was passed. 


WATERWAYS OR NEW JERSEY. 129 

By subsequent amendment, upon conveyance of 1,000 
shares of the joint stock of the two companies and a 
guarantee of an annual income of at least $30,000, should 
the dividends and transit duties not amount to that sum, 
the State agreed not to charter any competing railroad. 
This created a monopoly of transportation between 
Philadelphia and New York which lasted for years. 
So strong was the influence of the “Camden and Am¬ 
boy” and the “Delaware and Raritan Canal” party that 
they controlled legislatures and made or unmade gover¬ 
nors at will. The gubernatorial fight in 1836 was en¬ 
tirely between the two factions for and against these cor¬ 
porations. The Pennsylvania Railroad Company in 
1871 acquired, by a 999-years lease, the Delaware and 
Raritan Canal Co. and the Camden and Amboy Railroad 
and Transportation Co. 

The Delaware and Raritan Canal begins at the con¬ 
fluence of Crosswick Creek and the Delaware River, at 
Bordentown, and extends northeastwardly through 
Trenton, passing east of Princeton to Bound Brook, 
where it turns southeastwardly, following the Valley of 
the Raritan River, to New Brunswick. There is a feeder 
from Bull’s Island on the Delaware River which joins 
the main canal in Trenton. This feeder is nearly twen¬ 
ty-three miles in length. The topography of the country 
traversed is easy and there are no important elevations to 
overcome, the greatest elevation on the main canal being 
about 56 feet and on the feeder 70 feet. 

The distance between the Delaware and Raritan 
Rivers is 43.457 miles and the length of the feeder 22.727 
miles. There are thirteen locks, having a total length of 


130 WATERWAYS OR NEW JERSEY. 

210 feet each, and width of 23 feet on the main canal and 
two locks on the feeder. The surface width is now 80 
feet with a depth of about 8 feet. The canal was com¬ 
pleted in 1838, at an estimated cost of two and one-half 
million dollars, which has increased to nearly five and 
one-quarter million dollars through improvements and 
reconstruction. 

The commerce which passed through the Delaware 
and Raritan Canal in the early days was of considerable 
volume. The traffic was drawn from the ports on the 
Delaware River below Trenton, and those on the Chesa¬ 
peake Bay, through the Delaware and Chesapeake Canal, 
and also from the Schuylkill and Lehigh Canals in Penn¬ 
sylvania. The traffic from the Lehigh Canal was form¬ 
erly locked into the Delaware River and thence into the 
feeder at Lambertville. There was in the earlier days 
some traffic from the Hudson River ports, as well as 
from the Erie Canal and ports on Long Island Sound. In 
1866 it amounted to 2,857,232 tons, of which eighty- 
three per cent, was coal, but since that time there has 
been a gradual decline until the returns for 1908 showed 
only 397,258 tons, which, however, increased to 448,964 
tons in 1910. The ‘‘tons one mile’’ show a drop from 
93,800,450 in 1872 to 8,470,802 in 1910, or a decrease 
of 90.9 per cent. The reason for this decline has been the 
cause of much speculation and several investigations. The 
railroad control and competition has undoubtedly played 
a large part in the results. The facilities which the 
railroads have furnished, whereby the heavy commodities 
may be loaded directly on cars at the point of origin and 
thence forwarded direct to destination, without any fur- 


WATERWAYS OP NEW JERSEY. 13I 

ther handling, has no doubt made shippers indifferent to 
the fact that water transportation has been the means of 
the lowering of rail freight rates to meet water compe¬ 
tition. In the report of a Committee of the New Jersey 
Legislature, made in 19x1, the following are given as the 
means whereby the traffic can be restored to this canal d 

1. There should be a reduction in the rates of toll 
in order that there may be effective competition with 
the railroads. 

2. The present “classification” of commodities for 
the purpose of making rates therefore should be 
abolished. 

3. The toll-rate must be an established one, so that 
shippers may rely upon the fact that the rate will be 
stable and unchangeable and sufficiently certain to 
insure the investment of capital. 

4. There should be regulation of the management 
of the canal to prevent unnecessary delays and dis¬ 
crimination. 

5. The canal should be protected against destruc¬ 
tive railroad competition. 

6. The Interstate Commerce Commission should 
be given jurisdiction over the canal, as to interstate 
traffic. 

7. Trade bodies and merchants should unite to use 
the canal and to provide transportation facilities. 

8. Faster motive power should be used. 

9. The use of the canal should be stimulated by 
advertisement that this method of transportation is 
open to the public. 

JO. Terminals should be provided so that all ship¬ 
pers may be accommodated. 

^Report of the Committee appointed to investigate the Delaware 
and Raritan Canal, April 18, 1911. 



132 


WATERWAYS OR NRW JERSEY. 


Morris Canal 

The necessity for the Morris Canal was due to the fact 
that in northern central New Jersey were located, in the 
early days, a large number of iron forges and furnaces, 
which had to depend upon wagon transportation to reach 
the markets with their products and to secure their iron 
and zinc ores, lime and charcoal. This industry was thus 
placed at a decided disadvantage in competing with those 
located on navigable streams. New York was also a fast 
growing community and the general use of anthracite 
coal was rapidly increasing, so that the necessity for bet¬ 
ter transportation facilities for this product from the coal 
mines of Pennsylvania, as well as of building material 
from New Jersey, offered a large and immediate source 
of commerce to the canal. It was estimated that the 
transportation charges on the Morris Canal for coal 
would be one or one and one-quarter cents per ton-mile, 
equivalent to two dollars or two dollars and twenty-four 
cents per ton, including tolls. The charter allowed a 
charge of three cents per ton-mile. 

The idea of the canal, with inclined planes along 
substantially the lines afterwards adopted, was the cre¬ 
ation of George B. McCulloch, of Morristown, who en¬ 
deavored to induce the State to adopt it and provide the 
funds for its building. By an act of the legislature of 
November 15, 1822, entitled, “An Act for ascertaining 
the most eligible route for and probable expense of 
forming a Canal to connect the waters of the Pas¬ 
saic River with the waters of the Delaware River,” 
commissioners were appointed to investigate the prac- 


WATERWAYS OR NEW JERSEY. 133 

ticability, expense and utility of the proposed canal. The 
report was made in 1823, but, as in the case of the Dela¬ 
ware and Raritan Canal, the State refused to embark in 
the building of this canal. The enthusiasm created by 
the Erie Canal agitation, however, soon led to the for¬ 
mation of the Morris Canal and Banking Company, a 
private corporation of which Cadwallader D. Colden be¬ 
came its first president, and a charter granted by the leg¬ 
islature in 1824 under a special act. At the time there 
was not a single railroad in the United States, and the 
Morris Canal was not conceived with the idea of compet¬ 
ing with such means of transportation. 

The capital stock was placed at one million dollars, 
which might be subsequently increased to the extent of 
five hundred thousand dollars, and the act provided that 
company should have authority to take and hold all lands, 
waters and streams necessary for the purpose and that 
canal property used for navigation was to be perpetually 
exempt from taxation. This last provision was in force 
until 1884, when the State Board of Assessors assessed 
taxes on the canal under the act of 1884, which assess¬ 
ment the company fought in the courts, but finally in 
1890 paid under protest. The charter provides that the 
canal may be taken by the State at the end of ninety- 
nine years from the passage of the act, upon payment of a 
proper valuation to be fixed by commissioners. In case 
the State did not take the canal at the end of that time, 
the charter was to be automatically extended fon fifty 
years, after which time it was to lapse and all property of 
the canal was to become the sole property of the State. 
The canal was constructed between 1825-31 as far as the 
Passaic River. 


134 


WATERWAYS OR NEW JERSEY. 


In 1828 authority was given to extend it to the Hud¬ 
son River and this was completed in 1836. The banking 
privilege was granted for thirty-one years, but was sur¬ 
rendered in 1849. Various supplemental acts were pass¬ 
ed by the legislature between 1824 and i869>. Up to 1841 
it was said that there had been expended in and upon the 
canal about $3,400,000. From the first the canal was too 
small to accommodate boats of an economical size, the 
inclined planes did not w^ork out entirely successfully and 
various other difficulties arose, so that the company be¬ 
came deeply involved in debt and finally, in 1844, was sold 
out under foreclosure proceedings for one million dollars. 
Upon reorganization it was capitalized at $2,200,000. 
In 1914 the total outstanding stock and bonded indebted¬ 
ness was $2,747,239.50, the new owners having enlarged 
the canal to some extent with the additional capital and 
in other ways improved its earning capacity. In 1871, 
under authority of the legislature, it was leased in per¬ 
petuity to the Lehigh Valley Railroad Company, the 
agreement being that the lessee pay all rentals and neces¬ 
sary expenses of maintenance and operation, the interest 
on the outstanding indebtedness, four per cent, on the 
consolidation capital stock and ten per cent, on the pre¬ 
ferred stock. 

Since the time of the lease, the canal has been allowed 
to go into decay, as it has apparently been much more 
profitable to the railroad company to carry the commerce 
by rail than expend the necessary money to rehabilitate 
the old canal, even if such a scheme were possible. To¬ 
day many portions of the canal are practically unnavi- 
gable except for the smallest boats. 


wate:rways 0 ^ Ni:w Jersey. 


135 


The route, or right-of-way, of the canal proper ex¬ 
tends from the Delaware River at Phillipsburg, through 
Warren, Sussex, Morris, Passaic, Essex and Hudson 
counties, entering the Hudson River at Jersey City. The 
total distance is 102.648 miles, together with two feeders, 
one of 5.417 miles connecting with the Pompton River 
and the other of 6.95 miles connecting with Lake Hopat- 
cong. The ascent from Jersey City to the summit level 
near Lake Hopatcong is accomplished by twelve incline 
planes and eighteen locks, and the descent to the Delaware 
River by eleven planes and seven locks. The planes are 
inclined railways. A cradle descends to the bottom of the 
canal, so that the boat can be floated into it and secured, 
then the cradle is hauled by a cable, operated by water 
power to the level above. The vertical height to which 
the boats are elevated by the several planes varies from 
35 feet to 99.4 feet. The maximum elevation of the 
canal is 914 feet above sea level. The canal crosses the 
Passaic River on a stone aqueduct about 45 feet high. 
Owing to the manner of construction and the location of 
the canal, which is largely on side hills, there is consider¬ 
able leakage, as may be seen throughout the length of the 
canal in the small rivulets running away from the canal. 
There are several important water powers along the 
route, which are entitled to take a specified amount of 
flow from the waters of the canal under agreements made 
at the time of its building. 

As originally built the bottom width of the canal was 
20 feet, width on the water line 32 feet and depth of 
water 4 feet. The locks and planes were 9 feet wide and 
75 feet long. In 1835-36 the summit planes were altered 


136 


WATERWAYS OR NRW JRRSRY. 


to locks. The planes and locks in 1841 were enlarged 
to II feet width and 95 feet in length. After the re¬ 
organization, in 1845, the canal was enlarged, so that it 
had a bottom width of 25 feet, width on the water line 
of 40 feet and depth of 5 feet. As originally constructed 
the capacity of the boats using the canal was 18 tons each, 
but in 1845 section canal boats of 44 tons were intro¬ 
duced. 

The boats at present in service on the Morris Canal 
have a length of 90 feet, beam of 10 feet 6 inches and 
loaded draft of 3 feet 10 inches, with a carrying capacity 
of 70 gross tons. 

From a tonnage of 58,259 tons in 1845 the traffic on 
the canal increased to 889,220 tons in 1866, the maxi¬ 
mum. After the property came into the possession of the 
Lehigh Valley Railroad, the tonnage dropped to 685,191 
in 1872, 288,011 in 1892, 27,392 in 1902, and since that 
date has varied from 88,773 tons in 1906 to 158,966 tons 
in 1913 and 145,476 tons in 1914. 

For the past fifteen years there has been a persistent 
effort upon the part of the several interests involved to 
agree upon some basis whereby the canal could be aban¬ 
doned. At the direction of the Legislature three commis¬ 
sions have, since 1903, studied the subject and submitted 
plans whereby the State could take over the canal prop¬ 
erty, including the valuable water-rights. The problem is 
a very complicated one and the various interests involved 
so conflicting that nothing has thus far been accom¬ 
plished. It is generally conceded that its days of useful¬ 
ness as a carrier of commerce have passed. The main 
contention is as to the ultimate ownership of the termin- 


WATERWAYS OE NEW JERSEY. 


137 


als in Jersey City, which were secured from the State in 
the early days of its construction, and have since become 
very valuable. The lessee, the Lehigh Valley Railroad, 
admits that it is operating the canal at an annual loss. 
The revenue derived from the tonnage handled in 1913 
was $38,548.04, and for 1914, $33757-19* 



Morris Canal Route 



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NEW JERSEY SHIP CANAL (PROPOSED) 

In 1907 there was formed The Atlantic Deeper 
Waterways Association, the object of which was to secure 
an inland waterway along the Atlantic seaboard. Among 
the projects in the propaganda was a canal across the 
State of New Jersey. In pursuance of this object there 
was included in the River and Harbor Bill of March 3, 
1909, a provision authorizing the Secretary of War to 
cause a survey of the best route for such a canal and 
estimates of the cost of constructing the same. Acting 
in accordance with this provision, the Secretary of War 
appointed a special board of Army Engineers to carry 
out the instructions of Congress. The board of engi¬ 
neers made their report to the War Department under 
date of October 14, 1911 (House of Representatives 
Dbcument No. 391, 63d Congress, 2d Session). 

After a careful study of all conditions, it was deemed 
by them wise to eliminate the enlargement of the Dela¬ 
ware and Raritan Canal, as had been suggested, and to 
select an entirely new route. The board next made a 
study of the report of a survey which had been made in 
1894-5, at the instance of the city of Philadelphia, of a 
proposed route from Bordentown on the Delaware River 
to the Raritan River, following a line nearly parallel to 
the Pennsylvania Railroad as far as Monmouth Junction 
and thence down the valley of Lawrence Brook to Par¬ 
son’s Dam, and thence to the Raritan River at Sayreville. 
It was found, however, that this route would entail the 
building of several expensive railroad bridges, to accom- 

(139) 


140 


WATERWAYS OE NEW JERSEY. 


modate railroad tracks carrying a heavy travel. On ac¬ 
count of the large amount of travel over these bridges, the 
frequent opening and closing of them would cause serious 
delays and undoubtedly be a handicap to the canal com¬ 
merce. Furthermore, a study of the topography of the 
country showed that on account of the rock formation 
between Princeton Junction and Monmouth Junction, the 
cost of construction would be excessive. It was, there¬ 
fore, decided to select a route further south and east, 
along the “line of least resistance,” so as to avoid pass¬ 
ing directly through any towns, or under any bridges, 
which might impede quick movement of the traffic. 

The route selected runs from a point on the Trenton 
and Bordentown Branch of the Camden and Amboy 
Division of the Pennsylvania Railroad in a generally 
northeasterly direction up the valley of Crosswicks Creek 
to the highlands at Hutchinson mill pond; thence con¬ 
tinuing in a general northeasterly direction passing to the 
east of Edinburgh, about midway between Princeton 
Junction and Hightstown, and about two miles west of 
Cranberry to a point about three miles west of James- 
burg; thence passing through the valley of Manalapan 
Brook and South River to a point one mile east of Run¬ 
yon; thence continuing in a general northeasterly direc¬ 
tion over the highland near Cheesequake Creek and 
through the valley of this creek tO' Raritan Bay at 
Morgan. The length of the canal on this route would be 
33.7 miles, which, with the distance on the Delaware 
River and New York Bay, makes the entire distance from 
the wharves in Philadelphia to the Battery in New York 
City about 87 miles. 



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Route of proposed New Jersey Ship Canal 
















































WATERWAYS 01^ NEW JERSEY. I 4 I 

The plans call for a sea-level canal with a bottom 
width of 125 feet and a depth of 25 feet at the lowest 
stage. Subsequently, however, the Chief of Engineers 
recommended to Congress that a canal of lock type with 
a 12 feet depth and 90 feet bottom width be first given 
consideration on account of the initial cost. 

The estimated costs of the several depths and types 
of canals proposed, together with the estimated annual 
maintenance charges and interest on the cost of construc¬ 
tion, are as follows: 



Sea Levee. 

Lock. 

• 

Width 125 

Width 90 

Width 125 

Width 90 


feet, depth 

feet, depth 

feet, depth 

feet, depth 


25 feet. 

12 feet 

25 feet 

12 feet. 

Cost of Construction 

$45,000,000 

$31,557,672 

$29,781,367 

$18,736,230 

Annual Maintenance 
Annual interest at 

$312,217 

$266,672 

$713,999 

$604,000 

3% cost of con¬ 
struction . 

1,350,000 

946,730 

893,441 

562,087 


$1,662,217 

$1,213,402 

$1,607,440 

$1,166,087 


The canal, however, is to be planned and constructed 
with the idea of, at a future date, being changed to a 
sea-level canal and enlarged to a 25 feet depth. With 
this idea in view, it has been recommended that any right- 
of-way provided should be not less than 1,000 feet in 
width. 

In 1911 the Legislature of New Jersey, in a series of 
Joint Resolutions, commited the State to purchase and 
donate the right-of-way to the Federal Government, 






























142 


WATERWAYS OR NRW JRRSRY. 


whenever it was ready to build the canal. The resolution 
reading: 

“Br it ResoIvVEd hy the Senate and General As¬ 
sembly of the State of Nezv Jersey: 

(1) “That the construction of a canal across the 
State of New Jersey, connecting New York bay with 
deep water in the Delaware river at Bordentown, 
New Jersey, by the Federal Government, is an en¬ 
terprise which is likely to result in great benefit to 
this State and its inhabitants, in encouraging the 
various industries of the State, and affording a 
more ready method of communication and transpor¬ 
tation between points within this State and other 
points in this country and abroad, particularly in 
view of the importance of this canal as a necessary 
link in the intra-coastal system of inland waterways, 
extending from Maine to Florida, which, when com¬ 
pleted, will be of inestimable benefit to transportation 
along the entire Atlantic seaboard. 

(2) “That in order to bring about the construc¬ 
tion of this canal and its completion within as short 
a time as possible, on behalf of the people of this 
State, it is hereby declared that when the Govern¬ 
ment of the United States shall finally settle upon the 
route of the said canal, and shall make provision for 
its construction by suitable appropriation, the State 
of New Jersey shall acquire the right of way for the 
said canal by purchase or condemnation from the 
owners thereof and cede the same to the Federal 
Government for the use of the government in con¬ 
struction and maintaining the said canal, upon con¬ 
dition that the said canal, when completed, shall be 
free and open to the commerce of the world, without 
tolls or charges for the passage of vessels or freight 
thereon; provided^ the right of way can be obtained 


WATERWAYS OR NEW JERSEY. 


143 


by purchase or condemnation for a sum not exceed¬ 
ing five hundred thousand dollars, or such sum as 
may be appropriated by the Legislature for that pur¬ 
pose at the time when such appropriation and other 
legislation necessary to carry intO' effect the purposes 
of this resolution, shall become necessary and ap¬ 
propriate.’’ 

The Legislature of 1911, in order to carry out the 
spirit of the above resolution, authorized the appointment 
of the New Jersey Ship Canal Commission and delegated 
to it the duty of ascertaining the cost of the right-of-way 
and other details in connection with the proposed canal. 
This Commission, be ween 1912 and 1914, monumented 
the center line of the route from Bordentown to James- 
burg, plated the property adjacent to the proposed route 
with the names of the owners thereof and the value of 
the lands to be taken. 

In 1914 the duties of the New Jersey Ship Canal Com¬ 
mission were merged into those of the New Jersey Har¬ 
bor Commission, but as no appropriation was made to 
continue the work of monumenting the proposed route of 
the canal, nothing could be done to continue this work 
under the merger, and the monumenting of the other half 
remains to be completed. 

The commercial importance of a protected waterway 
as proposed, uniting, as it would, two of the greatest cen¬ 
ters of population and manufacture in the United States, 
cannot be overestimated. Furthermore, the construction 
of this link, in the general plan will unite all of the ter¬ 
ritory between Boston on the north and Florida on the 
south. Its strategic value in naval warfare has been 


TO 


144 


WATERWAYS OE NEW JERSEY. 


approved by all naval experts, making- it possible to reach 
the various sections of the Atlantic Coast and the several 
navy yards thereon without going out into the ocean. 


NEW JERSEY'S INLAND WATERWAY 


Along the Atlantic coast, from Cape May to the 
northern end of Barnegat Bay, nature has provided a 
natural inland waterway consisting of large expanses of 
water, called bays, which are connected one with the other 
by narrower channels, known as thorofares. In their 
original condition these waters were generally shoal, with 
here and there a deep channel, and were only navigable 
throughout their length for the lightest draft boats. 

With the building up of the numerous summer resorts 
along the coast, which has reached its greatest develop¬ 
ment within the last ten years, and the coming into popu¬ 
larity of the gasoline motor boat as a means of connect¬ 
ing the various developments, there arose a demand for 
a continuous and easily navigable channel throughout this 
stretch of territory. 

The River and Harbor Bill of 1886 contained a pro¬ 
vision for a preliminary survey and report upon the ad¬ 
visability of the Federal Government improving the 
“throughfare running back of the ocean from Cape May 
to the Great Bay north of Atlantic City.” The Federal 
Government views these improvements purely from a 
commercial standpoint, and, as a result of this survey, the 
engineers of the War Department reported in 1888 that, 
owing to the lack of commerce, the channels were not 
worthy of improvement by the United States Govern¬ 
ment.^ 


Report of Chief of Engineers, U. S. A., 1888, part i, pp. 728-734. 

(145) 



146 WATERWAYS OR NEW JERSEY. 

In 1907, however, the matter was again agitated and 
the Legislature of that year instructed the State Geologist 
to prepare two estimates of the cost of deepening the chan¬ 
nels from Bay Head to Cape May, one of which was to 
provide a channel depth of eight feet at low water, and 
the other a depth of ten feet, and in each case to have a 
width of fifty feet. The report on this survey was em¬ 
bodied in the Annual Report of the State Geologist for 
1907. At the next session of the Legislature a project 
for a channel of six feet depth and one hundred feet width 
was formally approved and the first appropriation was 
made with which to begin the work. Through subsequent 
appropriations the work has been continued and the chan¬ 
nel is now practically completed. Its value to the develop¬ 
ment of this section of the State is quite evident. To it 
can be traced a material increase in the taxables of the 
counties through which it passes, increasing the popularity 
of resorts already started and aiding in the building*up 
of entirely new ones. While it was not built as a result' 
of any large volume of coastwise commerce, existing or' 
in prospect in the future, it has been the means of greatly 
increasing the actual commerce carried over this route, 
especially that connected with the fishing industry, and 
this will undoubtdly grow as the advantages are better 
known. 

There is to-day an inside waterway 114 miles in 
length paralleling the ocean for two-thirds of the State’s 
frontage on the Atlantic Ocean. The channel begins 
at Bay Head, in Ocean County, thence passing through 
Barnegat Bay and the numerous thorofares and bays to 
Cold Spring Inlet at Cape May, where an extensive har- 


WATERWAYS OR NEW JERSEY. 


147 


bor is being constructed under Federal authority. The 
channel generally follows the natural channels wherever 
possible. In order, however, to meet certain conditions, 
it was necessary to construct numerous cut-offs and con¬ 
necting canals. Connecting with this inland waterway are 
several rivers and creeks under improvement by the Fed¬ 
eral Government and furnishing water connections to 
towns and villages of some local importance. There is, 
during the summer months, a population of approximately 
five hundred thousand people located along this water¬ 
way. 

In 1903, in accordance with instructions of the Leg¬ 
islature, the vState Geologist prepared plans and estimates 
of cost of a canal to connect the Manasquan River with 
the upper end of Barnegat Bay, which report is contained 
in the Annual Report of the State Geologist for 1903. 
Nothing, however, was done with this proposition until 
1911, when the general project was adopted. It contem¬ 
plated a canal of six feet depth and sixty feet width, 
which was subsequently increased to one hundred feet in 
width, along the line as laid down in 1903. The selection 
of the route was, however, in 1914 left in the hands of 
the Commissioner of Inland Waterways, subject to the 
approval of the Governor. An appropriation of $25,000 
was made for the purpose of obtaining the right-of-way, 
and the preliminary work to this end is now being active¬ 
ly carried on. 

These two projects, aside from the Shark River Inlet 
improvement, represent the principal, if not entire, invest¬ 
ment of the State of New Jersey towards the improve¬ 
ment of her waterways. While neither of them was in- 


148 


WATERWAYS OR NEW JERSEY. 


tended to be a direct revenue producer, they have already 
demonstrated the advisability and desirability of the 
State helping to improve and provide improved water¬ 
ways. 



Port and Harbor of New York 







' ■’f 4 







State Control Over Navigable Waterways 

The State of New Jersey is more favorably located 
than any other on the Atlantic Coast, in that, portions of 
its territory are located within the limits of two of the 
great Atlantic ports. A peculiar feature in this connec¬ 
tion was the way in which the early growth and develop¬ 
ment of these two ports took place. In Manhattan the 
greater development was confined to the eastern banks of 
the Hudson River, while the development on the Dela¬ 
ware River took place on the western shore. 

The exports and imports of these two ports consti¬ 
tute over 50 per cent, of the entire export and import 
trade of the United States and represent an aggregate 
value of over one hundred and twenty-five million dol¬ 
lars. While it is quite true that much the largest part 
of this is landed directly, either in Manhattan or Phila¬ 
delphia, it will be noted by the maps that the New Jersey 
water front in each of the ports constitutes a large part 
thereof, and the future expansion of both ports will nat¬ 
urally turn to the development of the New Jersey water 
front. 

The State of New Jersey has been censured for its 
lack of foresight in permitting so large a proportion of 
its water front in and along its several harbors and 
navigable waterways to fall into the hands of private in¬ 
terests. It must be remembered in this connection that in 
the early days there did not appear to be any prospective 
demand for a State, or municipally-owned water front 

(149) 


150 WATERWAYS OE NEW JERSEY. 

policy, while there did exist a strong popular demand for 
adequate railroad facilities, including terminals. Both 
Jersey City and Camden, which are opposite the large 
metropolitan cities, furnished the ideal, and in fact only, 
locations for such terminals. 

This railroad ownership of large tracts of the most 
favorably located lands along the various waterways of 
the United States has been severely criticised by several 
Congressional investigations and by independent writers, 
and New Jersey has probably suffered more in this re¬ 
spect than any other State. This has been due largely to 
her peculiar situation, lying as she does between the two 
great cities of New York and Philadelphia and being 
traversed by numerous railroads—all seeking an outlet at 
tide water. 

Within the last thirty or forty years. New Jersey, in 
common with other States, has suffered in the decline in 
canal and inland water transportation. The increase in 
railroad facilities has been enormous, and these corpora¬ 
tions have from the first striven, and now practically suc¬ 
ceeded, in killing the competition of inland water trans¬ 
portation. This has been accomplished, (a) through 
purchase of controlling interests in the canals; (b) 
through purchase of the most valuable portions of water 
front property; (c) through absorbing certain charges 
in connection with both local and import and export 
traffic. 

The struggle to secure complete mastery over water 
traffic, as well as to provide facilities for taking care of 
this traffic, has been an expensive one, especially in view 
of the numerous State and interstate regulations placed 


WATERWAYS OE NEW JERSEY. 151 

Upon them. Within the past year the railroads have re¬ 
ceived from the Interstate Commerce Commission per¬ 
mission to raise their passenger and freight rates, fear¬ 
ing no longer the competition which water carriers might 
have offered. 

Had New Jersey accepted, in the early days, her full 
duty and responsibility of developing certain water facili¬ 
ties and then maintained them, as has been done in some 
other States, these waterways would now be offering an 
important source of competition with the railroads and 
have compelled them to have constantly maintained their 
operating standards at the highest level and state of effi¬ 
ciency, and there would probably have been no logical 
reason for the request for an advance in rates. 

When the electric street railway lines were first in¬ 
troduced there were many people who prophesied all 
sorts of disasters to the existing railroads. The results 
have been the direct opposite. While the railroads have 
lost some local passenger business, they have gained an 
hundred-fold; first, in the number of residents of the 
cities who removed to suburban places; second, in the 
great increase in general travel which such facilities con¬ 
duced ; third, in the increase in the amount of local freight 
which the railroads have secured to supply the needs of 
this suburban exodus. In fact, the trolley roads have 
served as feeders of the steam roads. So will a canal or 
waterway, constructed and maintained in accordance with 
modern ideas and operated in the interests of the people, 
actually prove a benefit to the railroads. 

While it is true that waterways have, wherever im¬ 
proved, reduced the freight rates, the increase in the 


152 


WATe:rWAYS or NRW JERSEY. 


amount of freight ofifered to the railroads has more than 
offset the lowering of the receipts therefrom. The re¬ 
duction of freight rates has made manufacturing more 
profitable, and the more this has been the case, the more 
existing industries have expanded, or new ones created, 
which means the greater the amount of traffic offered. 

Waterways are adapted to the transportation of the 
heavier, bulkier and coarser class of commodities, such as 
coal, sand, stone, ores, etc., which pay the lowest rates 
of freight, while requiring the maximum of equipment 
and facilities. The higher grade of freight, paying the 
higher rate of transportation, should, from the economic 
standpoint, be carried in most cases by rail. There should 
be no antagonism between water carriers and rail car¬ 
riers. Their interests are interlocked and can be made 
mutually beneficial. 

A study of the early history of the State and of the 
constitutional restrictions reveals several important facts 
as to why New Jersey has in the past so sadly negelcted 
her waterways and allowed a source of wealth and income 
to slip away from her. 

First—In the early days there was a strong and ac¬ 
tive railroad and corporation “lobby,” busy at all times, 
at the State Capitol. The principal duties of this lobby 
were to secure the passage of such legislation as the rail¬ 
roads desired and to prevent any legislation inimical to 
their interests. 

Second—The public school funds are the beneficiaries 
of the sale of the State’s riparian lands. It is, therefore, 
essential that such lands shall bring in large returns, and 
the question as to the kind of development which is to 


WATERWAYS OR NEW JERSEY. 153 

take place thereon has, in the past, been of secondary im¬ 
portance. The result has been that the railroads and 
other large corporations were in a much better position 
than the individual to buy such riparian lands, and hold 
them as against a prospective competitor. 

Third—This policy of the sale of riparian lands tend¬ 
ing to keep down the annual tax required to maintain 
the free public schools, has appealed directly to the 
average voter, who was not interested in waterway de¬ 
velopment. As a consequence there has been no concert¬ 
ed movement, within the State, to alter or amend these 
provisions. 

Fourth—Under the Constitution of New Jersey, the 
Legislature is not permitted to create any debt which 
shall singly, or in the aggregate with any previous debts, 
at any time exceed one hundred thousand dollars, except 
for the purposes of war, or to repel invasion, or to sup¬ 
press insurrection, unless the same shall be authorized by 
law for some specific object, or work, and adopted by a 
majority of voters at a general election. On account of 
the unpopularity of such a plan by sections of the State 
remote from the ports aforementioned, no political party 
has ever dared to present such a proposition, and what¬ 
ever has been accomplished in the State in the way of 
municipal ownership of water terminal facilities has been 
of a local character and, therefore, limited to the resources 
of the separate communities. There has been enacted 
legislation, of one kind or another, permitting cities bor¬ 
dering on navigable waterways to improve their shipping 
facilities. One of these acts permits municipalities bor¬ 
dering on navigable waterways to issue bonds in amounts 


154 


WATERWAYS OE NEW JERSEY. 


not to exceed two million dollars for this purpose, and 
several of the communities, especially Newark, Trenton 
and Camden, have availed themselves of these privileges. 

Recently the suggestion has been made to permit a 
State Commission to secure such water front property as 
thought advisable by purchase or condemnation, the said 
Commission to issue its bonds, or other form of indebted¬ 
ness, which would be secured by a general mortgage up¬ 
on the property so purchased. This plan, which is sim¬ 
ilar to the one proposed by the Water Supply Commis¬ 
sion, has, however, been declared by the courts unconsti¬ 
tutional and repugnant to the provision above noted. In 
view of this decision, there now remain only two methods 
by which the State can take over the control of its water 
frontage; first, by direct appropriation by the Legislature 
of the amount necessary to carry out the proposition; 
or, second, by a bond issue, which must have the approval 
of the people at a general election. 

In a study of the causes for the great strides which 
have been made in certain ports of the world, the point 
which stands out more prominently than any other is the 
question of policy and administration. Public opinion 
in this, as in every other matter of civic life, has an im¬ 
portant bearing upon its development. Where water 
front property is in the hands of the municipal authorities, 
unless a public interest is created the development is al¬ 
ways along narrow and ofttimes misguided lines. It is 
generally conceded that the water frontage in the hands 
of private interests will not be administered for the public 
benefit unless the public, through its duly constituted 
officials, can exercise some control over such private prop- 


wate:rways or new JRRSKY. 


155 


erty. The benefits to be derived from the location upon 
navigable waterways belong to all the people. The in¬ 
dividual, or corporation, must be permitted to take his 
principal profit out of the ships, or out of the benefits 
which accrue as a result of location through the con¬ 
venience in loading or unloading of raw material or fin¬ 
ished products, while at the same time permitting, under 
proper restrictions and reasonable charges, the use of such 
terminal facilities by the general public. 

From what has already been stated it will be seen that 
the most logical manner in which the State of New Jer¬ 
sey can take up the active participation in waterway de¬ 
velopment would seem to be through supervision, or con¬ 
trol, over all waterfront property. The kind or character 
of supervision may be subject to modification before the 
ideal plan has been worked out, but the need therefor 
will hardly be questioned by those who have made a study 
of existing conditions. 

The first attempt at any systematic control over the 
development of the waterways of New Jersey was the ap¬ 
pointment, in 1911, in pursuance of a Joint Resolution of 
the Legislature, of a Commission to study and] report 
upon the port conditions of the Port of New York. The 
wording of the preamble to this resolution will convey an 
idea of the conditions, as they existed in this particular 
case, and is indicative of the situation all over the State. 
The resolution was as follows 

“Whereas, Many autonomous communities in 
both the States of New Jersey and New York are 
embraced within the confines of the port of New 
York; 


^Laws of New Jersey, 1911, pp. 840-841. 



156 WATERWAYS OR NEW JERSEY. 

‘'Whereas^ Each of such communities exercises 
local control of its water front facilities without co¬ 
operation, for the common good, with other com¬ 
munities within the port; 

‘‘Whereas, Questions of vital importance to said 
communities, such as the extension of pierhead lines, 
the harmonizing of the relations of water and rail- 
carriers, the intelligent reduction or port charges, the 
adoption of modem methods to the trans-shipment of 
freight between rail and water and to local distribu¬ 
tion of freight in congested localities are arising 
daily and urgently call for joint action if the port is 
to hold its pre-eminence among the ports of the 
world; 

“Whereas, An adequate study of the needs of the 
port should demonstrate what action is desirable on 
the part of public authority to bring about needed re¬ 
forms and improvements; now, therefore, 

“Be it Resoeved, That the Governor of the State 
of New Jersey is hereby authorized and requested to 
appoint three commissioners of experience and skill 
in matters relating to the construction and opera¬ 
tion of port facilities, both rail and water, to act 
jointly with three commissioners similarly appointed 
by the Governor of the State of New York, and with 
a seventh Commissioner appointed by the President 
of the United States. * * * * ” 

Following the appointment of this Commission mat¬ 
ters relating to the modification of harbor lines were taken 
up with the Federal Government and plans prepared for 
a comprehensive development of the flats on Upper New 
York Bay, in front of Jersey City and Bayonne. In its 
third report the Commission says: 



Port and Harbor of Philadelphia 

























































WATERWAYS OE NEW JERSEY. 


157 


“There has been no higher authority over the New 
Jersey water front after it was once sold out by the 
State than the building inspectors of some munici¬ 
pality who might pass on the safety of the struc¬ 
tures.”^ 

In the fourth report of this Commission the following 
statement is made: 

“From the studies made of the organization of im¬ 
portant seaport throughout the world, and from the 
observation of the present tendency of modern sea¬ 
ports to become public, as far as possible, for the re¬ 
ceipt and shipment of commerce, it would appear that 

. the only plan by which New Jersey can reap its prop¬ 
er share of the benefits from commerce is by the 
creation of a central port authority. It is probably 
impossible for enough of the communities to get to¬ 
gether to form general port bodies in various local 
districts, and it therefore seems necessary that such 
a body should be a state body. * * 

This Commission advocated the creation of a per¬ 
manent Harbor Commission whose duties and powers 
should be (a) to consider and report upon all plans and 
projects w’hich may be submitted to it by any municipal¬ 
ity; (b) to render such assistance as may be necessary in 
the preparation of plans for harbor improvements; (c) 
to act with, and in behalf of, communities, or municipal¬ 
ities, requiring action by the Federal Government; (d) to 
approve, disapprove or modify any and all plans proposed 
by public or private interests, which involve any changes, 

^“Harbor lines on New Jersey side of Upper New York Bay and 
General Observations on New Jersey’s Commerce,” 1913, p. 4. 

^ “New Jersey’s Relation to the Port of New York,” 4th Pre¬ 
liminary Report of the New Jersey Harbor Commission (i 9 i 3 )> P- 5 - 



158 WATERWAYS OR NEW JERSEY. 

or modifications of existing conditions on the navigable 
waterways of the State. 

As a result of the above recommendations, the New 
Jersey Legislature of 1914 passed a law creating the New 
Jersey Harbor Commission.^ This law provided, in brief, 
for the appointment of a Commission of five members, for 
such terms that one will expire each year; that the mem¬ 
bers shall serve without compensation; that it shall report 
annually to the Legislature on the condition of the water 
front, or harbor facilities, and any other matters incident 
to the movement of commerce; to make such recommen¬ 
dations to the Legislature, and to municipalities within 
the State, that it deems necessary and advisable; to re¬ 
move by appropriate action, obstructions or interference 
with the movement of commerce and navigation; to pass 
upon all plans, either by public or private interests, for the 
development, improvement or modification of the water 
front; to aid municipalities, when requested, in the prep¬ 
aration of plans for development and improvement of 
their water front. 

With such a comprehensive scope given it, the New 
Jersey Harbor Commission, in order to the more effective¬ 
ly fulfill its duty, divided the State into five zones, and 
placed each in charge of a commissioner. Every plan for 
improvements along a waterway of the State was referred 
to the commissioner in charge of that zone for his report 
and recommendation before it was acted upon by the 
Commission. Already familiar with local conditions, he 
was in a position to decide upon the adequacy of and 
necessity for the improvement. The engineering features 


^Laws of New Jersey, 1914, chapter 123, p. 205. 



WATERWAYS OR NEW JERSEY. 


159 


of the proposed improvement could be determined in 
most cases by the chief engineer of the Commission from 
the commissioner’s report. Thus applications for permits 
were promptly and intelligently handled and comprehen¬ 
sive development throughout the State obtained. All ac¬ 
tions of the individual commissioners, however, were 
subject to the final approval of the entire Commission. 
The constructive work performed by this Commission, 
during the one year of its existence, has been remarkable 
and amply shows the wisdom of the State policy adopted. 
This plan of carrying out the various provisions of the 
law is believed to be unique in harbor work. 

It might be added, though, that the weak parts of the 
law of 1914 were the provisions which gave the New Jer¬ 
sey Harbor Commission concurrent jurisdiction over navi¬ 
gable waterways with the Riparian Commission and speci¬ 
fied that their powers and duties were “co-ordinate there¬ 
with and in addition thereto.” Under these provisions the 
duty devolved upon the Harbor Commission to see that, 
before any plans were approved, the applicant had se¬ 
cured title to the lands under water by purchase, or lease, 
from the State, and, where such had not been obtained, 
withhold its approval of the project, thus subjecting the 
Harbor Commission to unjust criticism and the appli¬ 
cant to delay, since the only body which could give title 
to these riparian lands was the Riparian Commission. 

The plan for controlling and developing the water¬ 
ways of the State along the plans laid down in the act 
creating the New Jersey Harbor Commission is now 
recognized as an advanced step in the solution of this 
much discussed subject. The benefits have been both di- 


II 


l6o WATERWAYS OE NEW JERSEY. 

rect, as they relate to the property interests along New 
Jersey’s waterways, and indirect as concerns the relations 
between the State and the Federal authorities. In a re¬ 
cent discussion of this Commission before the National 
Association of Port Authorities in Baltimore, Colonel 
William M. Black, Division Engineer, United States 
Army, said: 

* * until very recent years New Jersey 

was more backward in the care of its harbors and 
ports than any other State; it left more to individual 
action than any other State of which I have knowl¬ 
edge. * * * As the matter now stands, when¬ 

ever any Federal question comes up regarding New 
Jersey, the Federal officials have a Board with whom 
they can consult, able tO' reach all sources in New 
Jersey, and able to represent the needs of New Jer¬ 
sey officially, and being a State board, able to rep¬ 
resent the needs of the whole State rather than those 
of a community or of a part of a community. The 
labors of the United States Government have been 
greatly helped by them. * * * j believe that the 

establishment of this Commission was a long step in 
advance taken by New Jersey for the proper develop¬ 
ment of her waterways and of her waterfront.” 

As a matter of ‘^economy and efficiency,” the Legis¬ 
lature of 1915 ^ combined the Harbor Commission and 
the Riparian Commission, together with the Inspectors of 
Power Vessels and the Department of Inland Waterways, 
into one department to be known as the Department of 
Commerce and Navigation, with all the powers and duties 
heretofore possessed by the individual Commissions and 
Departm.ents. 


^ Laws of New Jersey, 1915, chapter 242, p. 432. 



WATERWAYS OR NEW JERSEY. l6l 

Under this reorganization the development and im¬ 
provement of navigable waterways will be controlled by 
a Commission of eight members, serving without pay 
and authorized to appoint a Chief Engineer at an annual 
salary not to exceed five thousand dollars, as well as 
heads of such other departments and employes therein. 
This branch of the State government will now be in a 
position to promptly examine the facts relating to, or 
bearing upon, applications, both for riparian rights and 
development of waterways from the records within its 
own control, and can make such provision for the sale of 
riparian rights as will be of the greatest benefit to the im¬ 
provement of New Jersey’s water front, from the stand¬ 
point of commercial advancement. It is too early to see 
how effectively the question will work out, but the De¬ 
partment certainly has all the powers necessary to a 
proper control over waterway development along, or un¬ 
der, a comprehensive and systematic plan. 

The law creating the Department of Commerce and 
Navigation, as well as the several laws, or abstracts there¬ 
of, which will control and limit the operation of the new 
department, will be found on the following pages: 



a.i 




Laws Relating to Department of Commerce and 
Navigation 

An Act creating a department to be known as the Board 
of Commerce and Navigation and vesting therein all 
the powers and duties now devolved, by law, upon the 
Board of Riparian Commissioners, the Department of 
Inland Waterways, the Inspectors of Power Vessels, 
and the New Jersey Harbor Commission. 

Approved April 8, 1915. 

Laws of New Jersey, 1915, p. 432. 

Bk it enacted by the Senate and General Assembly 
of the State of New Jersey: 

1. A department of commerce and navigation is here¬ 
by established, and the same shall be governed by a board 
to be known as the ^^Board of Commerce and Naviga¬ 
tion.” 

2. The Board of Commerce and Navigation shall 
consist of eight members, not more than four of whom 
shall be members of the same political party, and all of 
whom shall be residents of the State. No riparian leases 
or grants shall be allowed by the board except when ap¬ 
proved and signed by the Governor. 

3. The members of the Board of Commerce and 
Navigation shall be appointed by the Governor, by and 
with the advice and consent of the Senate, for the fol¬ 
lowing terms, to commence on the first day of July, one 
thousand nine hundred and fifteen: two for one year, 
two for two years, two for three years, and two for four 
years. Annually thereafter two members shall be ap¬ 
pointed for a term of four years. Vacancies shall be 
filled for the unexpired terms. The board shall be pro- 

(163) 


164 WATERWAYS OE NEW JERSEY. 

vided with suitable offices at Trenton, at which all orig¬ 
inal records shall be kept. The board may, however, for 
local purposes establish sub-offices in other parts of the 
State. The board shall meet every month at Trenton and 
at such times as its rules may prescribe and at such other 
times and places within the State as in its judgment may 
be necessary. The board shall elect one of its members 
President who shall hold office for one year and until his 
successor shall be elected. 

The members of the board shall receive no compensa¬ 
tion for their services, but the State Treasurer shall, up¬ 
on the warrant of the State Comptroller, pay their neces¬ 
sary expenses. 

4. The board shall select a person who shall be known 
as the ‘‘Chief Engineer of Commerce and Navigation,” 
who shall be a resident of this State and a qualified en¬ 
gineer, who shall also be one of the division chiefs. In 
case the board cannot agree because of a tie vote there¬ 
in, upon the selection of a chief engineer, the Governor 
shall be requested to sit with said board for the purpose 
of casting the deciding vote. Said Chief Engineer of 
Commerce and Navigation shall receive a salary of not 
more than five thousand dollars per annum, to be paid 
out of the treasury of this State as the salaries of other 
employes are now, or may hereafter be, paid. He shall 
devote his entire time to the duties of his office, and shall 
serve for a term of four years, and until his successor 
has been appointed and qualified. 

5. The Board of Commerce and Navigation shall 
succeed to and exercise all the powers and perform all 
the duties now exercised and performed by or conferred 
and charged upon the Board of Riparian Commissioners, 
the Department of Inland Waterways, the Inspectors of 
Power Vessels, appointed under chapter ninety-one of 
the laws of one thousand nine hundred and six, and the 


WATI^RWAYS OR NEW JERSEY. 165 

acts amendatory thereof and supplementary thereto, and 
the New Jersey Harbor Commission (with which last- 
named commission the New Jersey Ship Canal Commis¬ 
sion was consolidated, by the provisions of chapter two 
hundred fifty-one of the laws of one thousand nine hun¬ 
dred and fourteen). 

6. The Board of Commerce and Navigation shall 
also have power to create sub-departments or divisions, 
to take specific charge of the different lines of work con¬ 
templated in this act, and shall have power to appoint 
heads or chiefs of such sub-departments or divisions. 

7. The Board of Commerce and Navigation shall 
have full control and direction of all State projects and 
work relating, in any way whatsoever, to commerce and 
navigation, except such work as is conferred upon other 
boards, not included within the provisions of this act. It 
shall make such rules and regulations governing work of 
the departments and the conduct of its employes as, in 
its opinion, may be necessary to promote the interests of 
the State, in all matters herein committed to its charge. 
It shall fix the salaries of all employes. 

The Board of Commerce and Navigation shall report 
annually to the Legislature. 

8. The Chief Engineer of Commerce and Naviga¬ 
tion shall attend all meetings of the board, and shall be 
ex officio secretary of the board. He shall be subject to 
the rules and regulations of the board, and shall exercise 
general supervision over all projects relating to the com¬ 
merce and navigation within and about the State, and all 
work in any way relating thereto. He shall be and here¬ 
by is charged with the enforcement of all laws relating 
to the powers and duties of the board and to the com¬ 
merce and navigation of the State and also all the rules 
and regulations made by said board. He shall obtain, 
collect and preserve such information relating to the 


1 66 WATERWAYS OE NEW JERSEY. 

State’s commerce and navigation and to the ways and 
means by which the same may be advanced, and also re¬ 
lating to the work of the department as may be useful 
in the discharge of his duties, or which may contribute 
to promote the interests of the State. > He may, and any 
person authorized by him so to do may, without fee or 
hindrance, enter upon, examine and survey all waterways 
in and about the State, all riparian lands, and all pro¬ 
posed waterways. 

9. The Board of Commerce and Navagiton, by its 
presiding officer, each of its committees by their chair¬ 
man, and the Chief Engineer of Commerce and Naviga¬ 
tion, shall have authority to administer oaths, and to ex¬ 
amine under oath, in any part of the State, witnesses in 
any matter relating to the powers and duties of the de¬ 
partments, and to the commerce and navigation of the 
State. For this purpose, it may issue subpoenas, signed 
by its president and secretary, requiring the attendance 
of witnesses and the production of books and papers in 
any part of the State before it, or before any of its com¬ 
mittees, or before the Chief Engineer of Commerce and 
Navigation, and any person who, being served with a 
subpoena issued pursuant to the provisions of this act, 
shall fail to attend or who shall fail to give testimony, 
unless such testimony incriminate him or subject him to 
a fine or punishment, shall be liable to a penalty of five 
hundred dollars for each and every offense, to be recov¬ 
ered in the name of the State of New Jersey; said pen¬ 
alty, when recovered, to be paid into the treasury of the 
State of New Jersey; and it shall be the duty of the At¬ 
torney-General to prosecute any and all actions for the 
recovery of penalties, when requested so to do, and when, 
in his judgment, the facts and the law warrant such 
prosecution. Any person who, having been sworn by the 
presiding officer of the board, or the chairman of any of 
its committees, or by the Chief Engineer of Commerce 


WATe:rWAYS or NRW JERSEY. 167 

and Navigation, and who wilfully gives false testimony, 
shall be guilty of perjury. 

10. The Chief Engineer of Commerce and Naviga¬ 
tion may be removed by the Governor, after a hearing; 
provided that charges against him have been submitted, 
in writing, signed by a majority of the members of the 
board; and provided^ further^ that the Governor finds 
such charges to be true in fact, and their nature such that, 
in his opinion, the best interests of the State demand the 
removal of said Chief Engineer. 

11. All of the,employees of the Department of Com¬ 
merce and Navigation shall be appointed and shall hold 
their positions subject to the provisions of an act en¬ 
titled “An Act regulating the employment, tenure and 
discharge of certain officers and employees of this State, 
and of the various counties and municipalities thereof, 
and providing for a civil service commission, and defin¬ 
ing its powers and duties,” approved April tenth, one 
thousand nine hundred and eight. 

12. Immediately upon the organization and estab¬ 
lishment of the Board of Commerce and Navigation, it 
shall become the duty of the heads or chiefs of the several 
sub-departments to codify the various laws which have 
been passed, from time to time, relating tO' or concerning, 
in any way whatsoever their respective departments, 
which codification shall set forth, in a clear and compre¬ 
hensive manner, the origin of such department, mean¬ 
ing thereby its creative act, after which shall follow, in 
their proper order, all existing acts amendatory thereof 
and supplementary thereto, and all acts relating to its con¬ 
solidation (if any there have been) with any other board 
or boards, commission or commissions, department or de¬ 
partments. Said work of codification shall continue, from 
year to year, after the principle herein set forth, with the 
idea of preserving, in concrete form, the history and de¬ 
velopment, or evolution so to speak, of each special 


168 WATERWAYS OE NEW JERSEY. 

department, and contributing materially to a better and 
more comprehensive understanding of all laws relating 
thereto, and of the powers and duties devolved upon said 
departments by said acts. 

13. Whenever, in any act, the words the '‘Board of 
Riparian Commissioners,’' the “Department of Inland 
Waterways,” the “Inspectors of Power Vessels,” the 
“New Jersey Harbor Commission,” and the “New Jersey 
Ship Canal Commission,” are used, the same shall be 
taken to be and to mean the Board of Commerce and 
Navigation, 

14. The officers and employees now in the employ of 
the old boards or commissions hereby consolidated shall 
be retained in their present offices or positions and shall 
continue as employees of the Department of Commerce 
and Navigation, unless removed in accordance with the 
provisions of an act entitled “An act regulating the em¬ 
ployment, tenure and discharge of certain officers and em¬ 
ployees of this State, and of the various counties and 
municipalities thereof, and providing for a civil service 
commission, and defining its powers and duties,” approv¬ 
ed April tenth, one thousand nine hundred and eight. The 
Chief Engineer of Commerce and Navigation, however, 
may, with the approval of the board, abolish any office 
or position which in his judgment it may be unneces¬ 
sary to retain. 

15. All acts and parts inconsistent with the provisions 
of this act be and the same are hereby repealed, and this 
act shall take effect on the first day of July, one thousand 
nine hundred and fifteen; provided, however, that if any 
section, or parts thereof, of this act shall be questioned 
in any court, and shall be held to be unconstitutional and 
void, the sections or parts thereof so declared to be in¬ 
valid shall be exscinded and the balance of the act shall 
stand as though said sections or parts thereof had never 
been included within the provisions of this act. 


Digest of Laws Relating to the Riparian 
Commission 

An Act to ascertain the rights of the State and of ripar¬ 
ian owners in the lands lying under the waters of the 
Bay of New York, and elsewhere in the State. 

Approved April ii, 1864. 

La,ws of New Jersey, 1864, p. 681. 

. This is the basic act upon which all subsequent ripa¬ 
rian legislation rests. It provides for the appointment 
of a Board of Commissioners to consist of six citizens, 
who “shall not be or become interested, directly or indi¬ 
rectly, in any water rights, or rights to occupy lands un¬ 
der water, in the said bays or rivers” (as noted below). 
The Commission shall have power and it shall be their 
duty to cause surveys to be made of the lands lying under 
the Bay of New Y’ork, of the Hudson River, the Kill von 
Kull, Newark Bay, Arthur’s Kill and Raritan River, as 
well as those of the Delaware River opposite the county 
of Philadelphia; to ascertain the value of these lands; to 
fix and establish exterior lines in said waters beyond 
which no piers shall be erected; to recommend to the legis¬ 
lature before February i, 1865, such plans and provision? 
for the disposition of said lands as shall be to the best 
interests of the State. The compensation of each com¬ 
missioner was fixed at five dollars a day for each day en¬ 
gaged in the work of the Commission, together with 
necessary expenses. 


(169) 


170 


wate:rways or NRW JRRSRY. 


Supplement to Act Approved April ii, 1864. 

Approved March 31, 1869. 

Laws of New Jersey, 1869, p. 1017. 

This approves the exterior line as established in the 
report of the Commission, dated February i, 1865, except 
so far as it extends in front of or over the lands of the 
Morris Canal and Banking Company, as granted by an 
act approved March 14, 1867. Every solid structure in 
the tide waters of the Hudson River, New York Bay and 
Kill von Kull beyond the bulkhead line, or lines of solid 
filling, is declared illegal and all piers built out to the pier 
head line, where such lines have been established, shall 
not exceed one hundred feet in width respectively, and 
shall not be built at less intervals between such piers than 
seventy-five feet, except where occupied and used as fer¬ 
ries; all piers must be erected on piles, or on blocks and 
bridges, so as to permit of a free flow or passage of water 
under, or through, them, and such blocks or bridges shall 
not occupy more than one-half the length of the pier. 

The so-called Wharr Act of March 18, 1851, is re¬ 
pealed, so far as it relates to the waters of the Hudson 
River, New York Bay and Kill von Kull. Provision, 
however, is made whereby any person or corporation, or 
his or its grantee, who had been authorized to fill in, or 
bulkhead, or otherwise improve lands under water 
through a grant from Legislature previous to the passage 
of this act could obtain a lease in perpetuity upon payment 
of an annual rental of three dollars per lineal foot, meas¬ 
ured along the bulkhead line, or a grant upon payment 
of fifty dollars per lineal foot. Any lease may be con- 


WATERWAYS OE NEW JERSEY. 171 

verted into a grant upon payment of the stipulated fee 
set forth above. 

This supplement provided for the appointment of four 
Commissioners and included within their powers and 
duties all of those contained in the act to which this is a 
supplement, except in so far as they are modified by this 
supplement, and at the same rate of compensation as in 
the original act. 

Provision was made for the sale of the riparian lands 
of the State, not already included in any grants or legis¬ 
lative acts, to fix the price therefor and to issue a grant 
in the name and under the great seal of the State, said 
conveyance to be subscribed by the Governor, and attested 
by the Attorney-General and Secretary of State. No 
grant or license, however, was to be made to any other 
than a riparian proprietor, until six calendar months after 
the said riparian proprietor had been personally notified 
in writing by the applicant for such grant or license, and 
had neglected to pay the price which the commission had 
fixed. 

The moneys received from the sale and rentals of the 
said lands under water shall be first appropriated to the 
payment of such appropriations as the Legislature may 
authorize, then to the payment and liquidation of the 
State debt and afterwards the same shall be invested ac¬ 
cording to law and the interest paid annually to the Trus¬ 
tees of School Fund, to be appropriated by them after¬ 
wards towards the maintenance of the free schools. 

The rights and interests of the State’s grantee, if he 
be any other than the riparian owner, in the lands under 
water, must be quieted before the said grantee can fill or 


172 


WATERWAYS OR NEW JERSEY. 


improve the same. The Commission is given power to 
fix the compensation to be paid by the State’s grantee to 
the riparian owner for these rights and interests (if he 
has any), and, if not satisfactory, to the riparian owner, 
he shall within twenty days appeal to the Supreme Court 
for a struck jury to try the question, the State bearing the 
costs of the trial in the event of the award being greater 
than that designated by the Commission. 


A Further Supplement to Act Approved April ii, 1864. 

Approved March 21, 1871. 

Laws of New Jersey, 1871, p. 44. 

Provides that any riparian owner may apply to the 
Commission for a license or conveyance of any lands un¬ 
der water in front of his lands and the same may be grant¬ 
ed, upon payment of the compensation fixed by the Ripar¬ 
ian Commission. Under this supplement only riparian 
owners may obtain a grant and a conveyance to any one 
else would be ultra vires. 


An Act Relative to the Riparian Commission. 

Approved April 6, 1871. 

Laws of New Jersey, 1871, p. 113. 

The act provides that the Riparian Commission may 
grant, or lease, first with a covenant to grant and grant 
afterwards such lands lying between what was at any 




WATERWAYS OR NEW JERSEY. 


173 


time, heretofore, the original high-water line and the ex¬ 
terior lines established b}^ the Commission. The act also 
provides that each commissioner shall receive an annual 
salary of $1,500. 


Supplement to the Act Approved April ii, 1864. 

Approved April 4, 1872. 

Laws of New Jersey, 1872, p. 99. 

This supplement provides that the Riparian Commis¬ 
sion may change, fix or establish any other lines than 
those now fixed and established for pier head lines, or 
lines for solid filling in the waters of New York Bay, or 
the Hudson River, or make any changes in any basins 
now fixed and established, or lay out and fix and estab¬ 
lish any river basins in the said waters. After the maps 
showing the new lines, or basins, have been filed in the 
office of the Secretary of State, no encroachments be¬ 
yond these lines shall be permitted. The Commissioners 
are authorized to make, for a satisfactory consideration, 
any leases or sales to the owners of property fronting on 
the said basin. 


A Further Supplement to Act Approved April ii, 1864. 

Approved March 27, 1874. 

Laws of New Jersey, 1874, p. 103. 

Confirms previous authority to execute leases or con¬ 
veyances of land under tide water and provides that the 




174 


WATERWAYS OE NEW JERSEY. 


applicant shall pay the costs and that they shall be sub¬ 
scribed by the Governor and at least three of the Ripa¬ 
rian Commissioners and attested by the Secretary of 
State. 


A Further Supplement to Act Approved April ii, 1864. 

Approved March 27, 1874. 

Laws of New Jersey, 1874, p. 136. 

Provides that where lands, which are now or ever 
have been under tide waters of this State and have been 
leased or granted by the State to any person, shall be 
taken by the company incorporated by an act, entitled 
“An act to incorporate a company to form artificial navi¬ 
gation between the waters of Newark Bay and New 
York Bay,” approved March 13, 1866, the parties owning 
the grant or lease shall be compensated therefor, and pro¬ 
vides for an appeal in case the award is not satisfactory. 


A Further Supplement to Act Approved April ii, 1864. 

Approved April 5, 1875. 

Laws of New Jersey, 1875, p. 53. 

This supplement provided that riparian owners ap¬ 
plying for grants shall pay for the cost of surveys and 
maps, but was superseded by supplement approved April 
17, 1888. 




wati:rways or nrw jrrsry. 


175 


Supplement to Act Approved April ii, 1864. 

Approved March 9, 1877. 

Laws of New Jersey, 1877, p. 113. 

Provides that where any right of way of any rail¬ 
road, etc., is located along the shore line the riparian 
owner whose upland is separated thereby shall be held to 
be the riparian owner for the purpose of receiving any 
grant or lease from the State to lands tinder water. 


Supplement to Act Approved April ii, 1864. 

Approved April 20, 1885. 

Laws of New Jersey, 1885, p. 257. 

This Supplement provided that the Commissioners 
shall so arrange by agreement, or ballot, that the office of 
one of them shall be vacant every year for a period of 
four years, and that the Commissioners hereafter appoint¬ 
ed shall hold office for terms of four years. Any vacan¬ 
cies shall be filled for the unexpired term only. 


Supplement to Act Approved April ii, 1864. 

Approved March 6, 1888. 

Laws of New Jersey, 1888, p. 140. 

Prohibits any grant or lease of lands under tide water, 
whereon there are natural oyster beds, except for the pur¬ 
pose of building wharves, bulkheads or piers. 

12 




176 WATERWAYS OR NEW JERSEY. 

Supplement to a Further Supplement Approved April 5, 

1875- 

Approved April 17, 1888. 

Laws of New Jersey, 1888, p. 437. 

The Riparian Commission may, at the request of the 
shore owners, extend their surveys over the tide waters 
of the State and prepare maps and have the same filed 
as provided by law. The commission is authorized to 
withhold an amount not to exceed five per centum of the 
total grants made to riparian owners from the school 
funds to meet the expenses of these surveys, as well as 
for salaries. 


A Further Supplement to Act Approved April ii, 1864. 

Approved April 19, 1889. 

Laws of New Jersey, 1889, p. 322. 

Provides that municipalities may obtain a grant or 
conveyance of the lands under water in front of public 
squares upon condition that such park shall be maintain¬ 
ed as an open public square forever and that no buildings 
shall be erected on the park or lands under water which 
will obstruct the view or public access to the water. The 
consideration shall be one dollar, and, if any of the above 
conditions are violated, the grant shall be void. 



WATE^RWAYS OR NRW JKRSKY. 


177 


A Further Supplement to Act Approved April ii, 1864. 

Approved February 10, 1891. 

Laws of New Jersey, 1891, p. 15. 

Authorizes the Riparian Commission, after consulta¬ 
tion with the Harbor Commission of the U. S. War 
Department, to establish exterior lines around or in front 
of all islands, reefs and shoals situated in the tidal waters 
of this State, beyond which no permanent structure or 
obstruction of any kind shall be maintained, as well as to 
establish lines for solid filling. The Commission is also 
authorized to sell or let to any applicant any of the lands 
under water and below mean high-water mark. 


A Further Supplement to Act Approved April ii, 1864. 

Approved March 20, 1891. 

Laws of New Jersey, 1891, p. 213. 

Provides that no dredging upon lands of the State 
lying under water, without a license from the Riparian 
Commission, shall be permitted except in the case of those 
owning riparian grants, who may dredge a channel from 
such grant to the main channel. The supplement also 
authorizes the leasing of any lands under water to any 
applicant, provided six months’ notice has been given to 
the shore owner and said owner has failed to apply for 
and complete such lease or grant. 



178 WATERWAYS OE NEW JERSEY. 

Amendment to Supplement Approved March 31, 1869. 

Approved March 20, 1891. 

Laws of New Jersey, 1891, p. 216. 

Repeals Act of 1851 (Wharf Act) so far as it re¬ 
mained in force by the Supplement of March 31, 1869, 
but permits boards of freeholders to issue licenses under 
the Whare Act until July i, 1891, but all reclamation 
or building under such licenses must be completed before 
January i, 1892. 


An Act to Reorganize the Board of Riparian Commis¬ 
sioners of the State. 

Approved March 10, 1892. 

Laws of New Jersey, 1892, p. 84. 

This Act affects the constitution of the board by 
providing that the terms of the present board shall ex¬ 
pire upon the appointment of four other commissioners 
and that the Governor shall be a member of the board. 
It also provides that the compensation and duties of the 
new board shall be the same as heretofore. 


An Act to Reorganize the Board of Riparian Commis¬ 
sioners of the State. 

Approved May 9, 1894. 

Laws of New Jersey, 1894, p. 267. 

Provides that the board shall consist of four com¬ 
missioners appointed by the Governor who shall hold 




WATe:rwAYS op Npw JpRSpY. 


179 


office for five years; not more than two of whom shall be 
of the same political party; salary, duties and powers of 
the board to be as previously prescribed. 


An Act to prohibit the riparian commissions from grant¬ 
ing any special oyster rights or privileges in Delaware 
bay. 

Approved May 15, 1894. 

Laws of New Jersey, 1894, p. 309. 


A Further Supplement to Act Approved April ii, 1864. 

Approved February 19, 1895. 

Laws of New Jersey, 1895, p. 88. 

This Act is for the protection of the Palisades and 
provides that no grant or lease of the lands in front of 
the Palisades shall be made by the Riparian Commission 
for any purpose which will not preserve their uniformity 
and continuity. 


An Act to Amend a Further Supplement Approved Feb¬ 
ruary 19, 1895. 

Approved May 18, 1898. 

Laws of New Jersey, 1898, p. 439. 

Refers to granting or leasing lands under water in 
front of the Palisades. 





i8o 


WATERWAYS OE NEW JERSEY. 


Supplement to Supplement Approved April 19, 1889. 

Approved March 7, 1901. 

Laws of New Jersey, 1901, p. 54. 

Permits a municipality which has secured, or intends 
to secure a grant of land in front of a public park to en¬ 
ter into a contract with the person or corporation owning 
the title to the fee of the soil embraced within the park 
or square, whereby the lands under water so granted to 
the municipality may be used for docking, berthing, load¬ 
ing or unloading vessels, but no structures erected for 
this purpose shall interrupt the view or public access to 
the water. 


A Further Supplement to Act Approved April ii, 1864. 

Approved March 22, 1901. 

Laws of New Jersey, 1901, p. 374. 

Any municipality may obtain a grant or conveyance 
of the lands under water within the limit of a public park 
or front of a street or public highway, provided the same 
is kept as a public park, or street, or highway for public 
recreation and resort, and that no structure be erect¬ 
ed thereon inconsistent with such use. The consideration 
shall be nominal and the land so granted shall revert to 
the State in the event of the park or street being aban¬ 
doned as such. 



WATe:rwAYS 01 ^ Ni:w JE:rSEY. l8l 

A Further Supplement to Act Approved April ii, 1864. 
Approved April 8, 1903. 

Laws of New Jersey, 1903, p. 387. 
Provides that where a municipality applies for lands 
under water in front of a public park, highway or street, 
the Riparian Commission may grant the same for the 
consideration to be charged therefor in the same manner 
as in the case of any other application. Repeals the nomi¬ 
nal consideration clause of the supplement approved 
March 22, 1901. Further provides that no grant of lands 
under water in front of a public park or end of a public 
street shall be made to any one except the municipality. 

A Further Supplement to Act Approved April ii, 1864. 

Approved April 6, 1906. 

Laws of New Jersey, 1906, p. 124. 

Directs the State Treasurer, on or before the first 
Thursday of January in each year, to transmit to the 
Riparian Commission a list of all leases of lands under 
water on which rentals are in arrears and unpaid for one 
year. It provides for re-entry upon such lands in certain 
cases and the re-granting of the said lands. 


An Act to compel the determination of titles to ripa¬ 
rian lands and lands under water in which the State 
claims an estate in remainder or reversion and to quiet 
the title to the same. 

Approved April 12, 1907. 

Laws of New Jersey, 1907, p. 96. 

In order that the title to riparian lands or lands un¬ 
der water which have been granted to any person or cor- 




182 WATERWAYS OE NEW JERSEY. 

poration in possession of such lands through lease or an 
estate for years may be definitely settled, the Court of 
Chancery is authorized, upon information of the Attor¬ 
ney General, to settle and determine such title. 


An Act to authorize the construction and establishment 
of public docks and the shipping facilities connected 
therewith, and the purchasing and acquiring of ripa¬ 
rian lands and rights and other lands and rights in 
lands necessary therefor or incident thereto, and for 
the regulation of the same in cities fronting on navig¬ 
able waters of this State. 

Approved October 21, 1907. 

Laws of New Jersey, 1907, p. 686. 

(See amendment approved March 12, 1913.) 

Provides that where a municipality decides to erect 
or acquire public docks and shipping facilities, it may 
condemn any riparian rights held by individuals as pro¬ 
vided by law, or may apply to the Riparian Commission 
for a grant of lands under water in front of any upland 
property. The grant shall not be made by the Commis¬ 
sion unless three months’ notice in writing shall be given 
to the upland owner, or published for thirty days in a 
newspaper of the said city, to the effect that if the said 
owner does not apply to and obtain from the Riparian 
Commission a grant for the said land within six months 
after the giving of the notice, such city will apply there¬ 
for. It is further provided that the city shall not have 
the right to sell or dispose of its grant, but if it ceases to 
use the same, it shall revert to the State. 



WATERWAYS OR NEW JERSEY. 183 

A Supplement to Act Approved April ii, 1864. 

Approved April 7, 1910. 

Laws of New Jersey, 1910, p. 154. 

Provides that no pipe line shall be laid upon the lands 
of the State lying under water without the consent of the 
Governor and Riparian Commission. The supplement, 
however, does not apply to the lands under the waters 
of the Atlantic Ocean. 


Amendment to Act Approved October 21, 1907. 

Title to read: 

“An Act to authorize the construction, establishment and 
maintenance of public docks, warehouses and other 
structures, wharves, piers, bulkheads, slips, basins and 
shipping and transportation facilities, the acquisition 
of marsh lands and other lands, and rights in lands, 
riparian lands or lands under water, and for the regu¬ 
lation and use of the same in cities fronting on navig¬ 
able waters of the state.” 

Approved March 12, 1913. 

Laws of New Jersey, 1913, p. 107. 

Section i requires that the municipal authorities shall 
prepare a plan or map showing the marsh lands or other 
lands, and the riparian lands and lands under water, 
which it is necessary to acquire to carry out the purposes 
of this act. 



184 WATe:rWAYS of NFW JERSEY. 

A Further Supplement to Act Approved April ii, 1864. 

Approved April 8, 1914. 

Laws of New Jersey, 1914, p. 237. 

This supplement requires that every lease, or grant, 
to a municipality of riparian lands lying at the foot of 
any streets shall contain provision that the said lands are 
to be used for public purposes only, and the rental, or con¬ 
sideration, shall be fixed, having due regard to the fact 
that such lands are to be used for public purposes. 


An Act to authorize the Riparian Commissioners of the 
State of New Jersey to grant lands of the State now 
or formerly under tide water to municipalities for 
streets and park purposes, and to impose terms upon 
such municipalities as conditions of such grant. 

Approved April 17, 1914. 

Laws of New Jersey, 1914, p. 474. 

The act provides that the Riparian Commission may 
grant or lease to municipalities for public parks or streets 
such lands as are now or formerly were under water for 
consideration to be named by them. The grant may be 
for the entire bed or land now or formerly underneath 
the whole or any part of the waters of a branch, arm, 
lake, lesser channel or any subsidiary or auxiliary por¬ 
tion of any tidal water of the State. The Commission 
shall impose such terms upon the municipality, if needed, 
to protect the interests of other municipalities to insure 
additional flowage in the main portion of the stream. 



WATERWAYS OR NEW JERSEY. 1 85 

A Further Supplement to Act Approved April ii, 1864. 

Approved April 23, 1915. 

Laws of New Jersey, 1915, p. 760. 

Provides that the Riparian Commission, or their suc¬ 
cessors, are directed to authorize the use of state lands 
in front of any municipal development of docks and ship¬ 
ping facilities upon such terms as deemed proper, taking 
into consideration the public use to which said lands are 
to be devoted and the enhancement of the value of ad¬ 
joining riparian lands by such development. They are 
authorized to rent said lands for a term of years with the 
option of the municipality to purchase in fee the same be¬ 
fore the termination of such lease. 


Riparian Lands and the School Fund 

A Supplement to an act entitled “An act to establish a 
system of public instruction (Revision) approved 
March 27, 1874.” 

Approved April 24, 1894. 

Laws of New Jersey, 1894, p. 123. 

1. Provides that all State lands under water are 
irrevocably appropriated for the support of free schools in 
this State; all moneys received from the sale and rentals 
of such lands are to be held by the trustees of the school 
fund in trust. 

2. Directs that all leases for lands under water are 
to be transferred to the trustees of the school fund to 
become a portion of the free public school fund. 



Law Creating the New Jersey Harbor Commission 

An act to create the New Jersey Harbor Commission and to define 

its powers and duties. 

Approved April 8, 1914. Laws of New Jersey, 1914, p. 205. 

Be it Enacted by the Senate and General Assembly of the State 
of New Jersey: 

1. The Governor, with the advice and consent of the Senate, 
shall appoint five persons, not more than three of whom shall 
be of the same political party, residents of this State for at least five 
years previous to appointment, who shall constitute the New Jersey 
Harbor Commission. The terms of office of the persons first ap¬ 
pointed by the Governor shall be so arranged and designated at 
the time of their appointment that the term of one member shall 
expire in five years, one in four years, one in three years, one in two 
years, and one in one year from the first day of April, nineteen 
hundred and fourteen. Annually thereafter the Governor, with the 
advice and consent of the Senate, shall appoint one member to 
serve a term of five years, as the term of any member previously 
appointed shall expire. Any vacancy occurring shall be filled for 
the unexpired term by the Governor, with the advice and consent 
of the Senate, and in all cases a member shall continue to serve 
until his successor is appointed and qualified. The members of this 
commission shall serve without compensation, except that they shall 
be paid the necessary expenses incurred in the performance of 
their duties. 

2. The commission shall be provided with suitable office 
accommodations by the State House Commission, in the State 
House, or building adjacent thereto owned by the State, or may, 
with the permission of the State House Commission, rent suitable 
offices elsewhere for local purposes and furnish the same with the 
equipment necessary to conduct the business of the commission. 
The commission may employ a secretary and such engineers, clerks 
and assistants as it shall deem necessary, and fix their compensa¬ 
tion ; provided, however, that this power shall not bind the State 
of New Jersey to the payment of any sum or sums unless the same 
shall be included in any annual or supplemental appropriation bill. 
The secretary, engineers, clerks and assistants shall be deemed to 
be within the Civil Service of the State, subject to the provisions 

(186) 


WATERWAYS OE NEW JERSEY. 


187 


of an act entitled ‘‘An act regulating the employment, tenure and 
discharge of certain officers and employees of this State, and of the 
various counties and municipalities thereof, and providing for a 
Civil Service Commission and defining its powers and duties,” ap¬ 
proved April tenth, one thousand nine hundred and eight. The 
commission shall adopt a seal, and shall also adopt such rules, regu¬ 
lations and by-laws for the transaction of its business and the per¬ 
formance of its duties as may be necessary and advisable, and not 
inconsistent with this statute, with power to alter and amend the 
same from time to time as it shall become necessary or advisable 
so to do. The commission shall keep a record of all its proceedings, 
and such records, together with all maps, plans and specifications 
on file in its office, shall be open at all reasonable times to public 
inspection as public records. 

3. It shall be the duty of the commission to investigate 
and< report annually to the Legislature the condition of the water 
front or harbor facilities, and any other matter incident to the 
movement of commerce upon all navigable rivers and waters in this 
State, or bounding thereon, and to recommend to the Legislature 
and to the various municipalities of this State interested therein, 
such measures as may, in the judgment of the commission, be neces¬ 
sary or advisable for the preservation of proper navigation or its 
improvement, or the improvement of the movement of commerce 
upon such waters, and, concurrently with the Riparian Commission 
of this State, or any board or body which may succeed to the powers 
of said commission, the commission created by this act shall have 
power, by appropriate action in any court, to prevent encroachment 
or trespass upon the water front of any of the navigable waters of 
this State, and to compel the removal of any such encroachment 
or trespass, and to restrain, prevent and remove any construction, 
erection or accretion injurious to the flow of any such waters which 
may be detrimental to the proper navigation thereof, and the main¬ 
tenance and improvement of commerce thereon. 

4. All plans for the development of any water front upon 
any navigable water or stream of this State, or bounding thereon, 
which is contemplated by any person, corporation or municipality, 
in the nature of individual improvement or development, or as a 
part of a general plan which involves the construction, change, 
alteration or modification' of a dock, wharf, pier, bulkhead, bridge, 
pipe line, cable, or any other similar or dissimilar water front de¬ 
velopment, to be undertaken subsequent to the passage of this act, 
shall first be submitted to the said commission, and no such develop- 


WATERWAYS OE NEW JERSEY. 


188 

ment or improvement enumerated within the provisions of this sec¬ 
tion, or included within a proper interpretation thereof, shall be 
commenced or executed without the approval of this commission 
first had and received, or as hereinafter provided. Upon the pre¬ 
sentation of plans for any such improvement, the commission shall 
forthwith consider the same, and shall, if necessary or desirable, 
hold public meetings for the consideration thereof, under such rules 
and regulations as the commission may establish. Before any plans 
are approved or disapproved, the commission shall have power, 
except as hereinafter provided,' to direct such changes or alterations 
in the plans submitted as it may deem necessary or advisable, as a 
condition precedent to approval. Where such water front is under 
the control of any local board, commission or other governing body, 
created by an act of the Legislature, now or hereafter, having power 
to improve or develop the water front or exercising such authority 
that a permit or license must be granted by it before any improve¬ 
ment or development may be commenced, plans proposed by it or 
submitted to it shall be filed with the commission created under 
this act. The said commission created under this act may, within 
ten days after the receipt by it of plans as above provided, file notice 
of objections to the carrying out of such improvement or develop¬ 
ment, or to the granting of such permit or license by the local board, 
commission or other governing body, and the filing of such notice 
shall act as a stay in the carrying out of such plans or in the 
granting of such permit or license until a public hearing shall have 
been held by the local board, commission or other governing body, 
sitting jointly with the commission created under this act. At such 
public hearing the commission created under this act may state its 
objections to the plans and recommend such changes, modifications 
or alterations as it deems necessary. The local board, commission 
or other governing body together with the commission created under 
this act shall then either approve or disapprove the plans, or grant 
or refuse to grant the permit or license as in their judgment seems 
necessary or desirable. Any development or improvement enume¬ 
rated within the provisions of this section, or included within a 
proper interpretation thereof, which shall have been commenced or 
executed without first obtaining approval as provided in this section, 
shall be deemed to be a purpresture and a public nuisance and shall 
be abated in the name of the State of New Jersey in such action 
as shall be appropriated for that purpose; provided, however, this 
section shall not apply to, or afifect, any development for docks, 
shipping and transportation facilities heretofore inaugurated by a 


WATERWAYS OE NEW JERSEY. 


189 


municipality, which is under construction in whole or in part, if 
such municipality has, prior to the passage of this act, filed with the 
Secretary of State a map showing the lands proposed to be taken 
for such municipal development. 

5, Any county, town, township, borough, city, or other politi¬ 
cal subdivision of this State, may request the said commission 
to prepare and propose for such municipality a proper plan for the 
development and improvement of its water front upon any naviga¬ 
ble stream, river or waters of this State, or bounding thereon, and 
it shall be the duty of the said commission to prepare and submit 
such plan or plans for the improvement and development of the 
water front of such municipality, the navigation of the waters inci¬ 
dent thereto, and the regulation and improvement of the traffic of 
commerce incident thereto. The said commission for the prepara¬ 
tion and submission of such plans may make such charge against 
the rnunicipality requesting the same as is equal to the actual cost 
of the preparation of such plans of improvement, and the munici¬ 
pality requesting the same is hereby authorized to pay the same 
from any funds in the treasury of the said municipality. 

6. When the commission shall be constituted in accordance 
with the provision of this act, the commissioners appointed 
pursuant to the provisions of Joint Resolution No. 3, approved 
March twenty-ninth, one thousand nine hundred and eleven,^ shall 
deliver to this commission all maps, plans and other data and in¬ 
formation in its possession, and the terms of office of the members 
of the commission created pursuant to said Joint Resolution No. 3, 
approved March twenty-ninth, one thousand nine hundred and 
eleven, shall thereupon terminate and cease, and the commission 
appointed under the provisions of this act shall also continue such 
work as the former commission was authorized to perform. The 
commission appointed under the provisions of this act shall carry 
out such contracts as have been made by the said commission ap¬ 
pointed pursuant to the provisions of Joint Resolution No. 3, ap¬ 
proved March twenty-ninth, one thousand nine hundred and eleven, 
and any unexpended moneys in the State Treasury appropriated for 
the use of the commission' appointed pursuant to the provisions of 
Joint Resolution No. 3, approved March twenty-ninth, one thousand 
nine hundred and eleven, shall be placed to the credit of any for 
the use of the commission appointed under the provisions of this 
act. 


^ See pp. 104-105. 



190 


WATERWAYS OE NEW JERSEY. 


7. The sum of twenty-five thousand dollars is hereby ap¬ 
propriated for the uses and purposes of the said commission, pur¬ 
suant to the provisions of this act, when included in whole or in 
part in any annual or supplemental appropriation bill. 

8. Nothing herein contained shall be construed to deprive 
the Board of Riparian Commissioners or their lawful successors of 
the jurisdiction, power and authority conferred upon it or them by 
the laws of this State, but the powers conferred by this statute 
upon the commission hereby constituted shall be co-ordinate there¬ 
with and in addition thereto. 

9. All acts and parts of acts inconsistent herewith are here¬ 
by repealed, and this act shall take effect immediately; provided, 
however, that if any section or parts thereof of this act shall be 
questioned in any court, and shall be held to be unconstitutional and 
void, the sections or parts thereof so declared to be invalid shall be 
exscinded and the balance of the act shall stand as though said 
sections or parts thereof had never been included within the provi¬ 
sions of this act. 


Laws Relating to New Jersey Ship Canal 
Commission 

Joint Resolution No. 8. 

Approved April 24, 1911. Laws of New Jersey, 1911, p. .846. 

Be it Resolved by the Senate and General Assembly of the 
State of New Jersey: 

1. The Governor is hereby authorized to appoint five per¬ 
sons to constitute “The New Jersey Ship Canal Commission,” 
who shall hold their office for three years, and who shall serve 
without compensation, either for services or expenses, and such 
clerical assistants as they may see fit to employ shall be at their own 
expense. 

2. The duty of the said commission shall be to examine 
the plan and route of the proposed canal across the State of New 
Jersey connecting New York bay with deep water in the Delaware 
river at Bordentown; to discover the amount of land necessary to 
be acquired for the right-of-way of the said canal, and determine as 
nearly as possible, the cost of acquiring the same; to consider and 
determine the location of, and plans for, terminals, railroad con¬ 
nections and stations along the line of the said canal, and the 
arrangement of transportation facilities in connection therewith; to 
determine generally upon a plan of development at the terminals 
and along the line of the said canal, and the advisability of the 
acquisition thereof by the State, so that, in the construction and 
operation of said canal, the greatest possible benefit will result to 
the people of the State at large. The investigations, recommenda¬ 
tions and plans determined upon by the said commission shall be 
reported to the next Legislature for the information and guidance 
thereof. 

2. This joint resolution shall take effect immediately. 


An Act making appropriation for the extension of the government 
survey and the erection of monuments for the permanent loca¬ 
tion thereof on the route of the ship canal across the State of 
New Jersey, and for other incidental expenses in connection 
therewith. 

Approved March 25, 1912. Laws of New Jersey, 1912, p. 212. 
Whereas, by Joint Resolution No. 8, approved April twenty- 
fourth, nineteen hundred and eleven, the Governor was authorized 

13 (191) 



192 


WATE:rWAYS 01 ^ ne:w jerse:y. 


to appoint five persons to constitute the New Jersey Ship Canal 
Commission, whose duty it should be to examine the plan and route 
of the proposed canal across the State of New Jersey, connecting 
New York bay with deep water in the Delaware River at Borden- 
town, to discover the right of way of the said canal, and determine 
other facts in connection therewith; and 

Whereas, the report of the said Commission has been filed 
with the Legislature, and it is necessary and advisable that the 
survey heretofore made by the Federal Government shall be ex¬ 
tended, and that monuments shall be erected along the line of the 
said survey, so that the location thereof may not be lost; 

Be it Enacted by the Senate and General Assembly of the 
State of New Jersey: 

1. The sum of twenty-five thousand dollars is hereby ap¬ 
propriated to be used by the commission appointed under Joint 
Resolution No. 8, approved April twenty-fourth, nineteen hundred 
and eleven, and known as the New Jersey Ship Canal Commission, 
to be expended in the extension of the United States Government 
surveys for a ship canal across the State of New Jersey, and for 
the erection of monuments for the permanent location thereof to 
ascertain the description of the lands and their owners, and’for 
such other necessary expenses as in the performance of the duty 
for which it was constituted the said commission shall order. 

2. The sum of money hereby appropriated shall be expend¬ 
ed, when included in any annual or supplemental appropriation 
bill, in whole or in part to the extent appropriated, upon the ap¬ 
proval of the president and the secretary of the said commission. 

3. All acts and parts of acts inconsistent herewith are hereby 
repealed, and this act shall take effect immediately. 


An Act to consolidate with the New Jersey Harbor Commission the 
New Jersey Ship Canal Commission. 

Approved April 17, 1914. Laws of New Jersey, 1914, p. 522. 

Be it Enacted by the Senate and General Assembly of the 
State of New Jersey: 

1. The New Jersey Ship Canal Commission is hereby merged 
into and consolidated with the New Jersey Harbor Commission. 

2. The New Jersey Harbor Commission shall succeed to and 
exercise all the powers and perform all the duties now exer- 



WATERWAYS OR NEW JERSEY. 


193 


cised and performed by or conferred and charged upon the New 
Jersey Ship Canal Commission. 

3. The powers and duties of the New Jersey Ship Canal 
Commission shall be deemed for the purpose of this act to continue 
throughout the life of the New Jersey Harbor Commission, not¬ 
withstanding the expiration of the period of time for which such 
New Jersey Ship Canal Commission was created. 

4. All offices existing under and by virtue of the acts and 
resolutions creating the New Jersey Ship Canal Commission shall 
end on the thirtieth day of June, one thousand nine hundred and 
fourteen. 

5. All acts and parts of acts inconsistent with the provisions 
of this act are hereby repealed, and this act shall take effect on the 
thirtieth day of June, one thousand nine hundred and fourteen. 


Law Creating the Pilot Commission 

An Act to regulate the use of power vessels and boats 
navigating the waters within the jurisdiction of this 
State above tide water, and to provide for the inspec¬ 
tion and licensing of power vessels, their masters, 
pilots and engineers. 

Approved April 9, 1906. 

Laws of New Jersey, 1906, p. 134. 

The act provides for the appointment by the Governor 
for terms of three years of a chief inspector and one as¬ 
sistant inspector of power vessels, the former at a salary 
of six hundred dollars per year and the latter to receive 
ten dollars a day for each day of actual service together 
with their necessary expenses which are to be “duly 
audited by the Governor.” It is provided that these in¬ 
spectors shall have two years’ experience as licensed mas¬ 
ters, pilots or engineers. The act provides the dutes of 
the inspectors, the obligations placed upon owners of ves¬ 
sels engaged in carrying passengers or freight for hire or 
towing for hire. It lays down “Rules of the Road” and 
penalties for violating the regulations adopted by the chief 
inspector. 


Supplement to Act of April 6, 1906. 

Approved March ii, 1910. 

Laws of New Jersey, 1910, p. 17. 

This supplement provides that the registration of ves¬ 
sels licensed to carry passengers shall be renewed an¬ 
nually; also that the chief inspector shall maintain an office 
at or near Lake Hopatcong. 

(194) 



Laws Relating to the Department of Inland 
Waterways 

An Act to establish a Department of Inland Waterways. 

Approved March 17, 1908. 

Laws of New Jersey, 1908, p. 28. 

The act authorizes the establishment of a Department 
of Inland Waterv-ays; to consist of a Commissioner of 
Inland Waterways, to be appointed by the Governor for a 
term of five years at an annual salary of two thousand 
dollars, and such clerical assistants as may be necessary; 
the said assistants to be appointed by the Commissioner 
subject to the approval of the Governor. The duties and 
powers of the Department are as follows: 

(1) To investigate and report annually to the Gover¬ 
nor the routes of existing inland waterways of the State, 
their depth and use by business, or pleasure craft and the 
advisability and possibility of increasing the use thereof, 
either by extension or improvement. 

(2) To recommend the construction of such addi¬ 
tional waterways as are best calculated to promote the 
interests of the people of this State. 

(3) To make, or have made, such surveys as may 
hereafter be authorized. 

(4) To maintain, improve and repair the existing 
inland waterways of this State; to construct and main¬ 
tain such additional waterways as may be authorized; to 
make and enforce proper rules and regulations for the use 
of the same. 

(195) 


196 WATERWAYS OE NEW JERSEY. 

Supplement to Act approved March 17, 1908. 

Approved April 16, 1909. 

Laws of New Jersey, 1909, p. 207. 

Gives the Commissioner of Inland Waterways specific 
authority to appoint Harbor Masters in any locality 
where the inland waterway may be constructed when, in 
his discretion, such shall be necessary. The term of office 
shall be one year and appointee to serve without compen¬ 
sation. 


An Act making appropriation for the purpose of marking 
the channel of the inland waterway along the Atlantic 
coast from Cape May to Bay Head, and the waters 
connecting therewith and adjacent thereto. 

Approved April 6, 1911. 

Laws of New Jersey, 1911, p. 154. 
See amendment approved April i, 1912. 

Authorized the Commissioner of Inland Waterways 
to properly mark by stakes, buoys and lights, the channels 
of the inland waterways and appropriates $1,500 for the 
work, when the same is included in any annual supple¬ 
mental bill. 


An Act amending the Act approved April 6, 19ii. 

Approved April i, 1912. 

Laws of New Jersey, 1912, p. 526. 

Increases the amount appropriated for marking the 
channel of the inland waterway to $3,500, when this sum 
is included in the annual or supplemental appropriation 
bill. 




waterways OJ' new jersey. 


197 


An Act authorizing the construction of an inland water¬ 
way extending from Cape May to Bay Head along the 
Atlantic Coast, and making an appropriation therefor. 

Approved April 6, 1908. 

Laws of New Jersey, 1908, p. 126. 
(See supplements and amendments as adopted.) 

Provides an appropriation of $300,000 for the project, 
but only as much of this sum shall be expended each year 
as may be included in the annual or supplemental appro¬ 
priation bill. 


Supplement to Act approved April 6, 1908. 

Approved March 8, 1912. 

Laws of New Jersey, 1912, p. 52. 

Makes an additional appropriation of $300,000 for 
the completion of the inland waterway from Cape May 
to Bay Head and $25,000 for maintenance, in such 
amounts as shall be included in any annual or supple¬ 
mental appropriation bill. 


Supplement to Act approved April 6, 1908. 

Approved May 13, 1912. 

Laws of New Jersey, 1912, p. 934. 

Authorizes the Commissioner of Inland Waterways to 
make such variations in the plan originally adopted for 
the inland waterways from Cape May to Bay Head as he 
may think advisable, or to the interests of the State, such 
changes to be subject to the approval of the Governor. 




198 WATERWAYS OR NEW JERSEY. 

An Act authorizing the construction of a waterway con¬ 
necting Barnegat bay and Manasquan inlet, and mak¬ 
ing an appropriation therefor. 

Approved April 24, 1911. 

Laws of New Jersey, .1911, p. 446. 
See amendment approved April 17, 1914. 

This act provides an appropriation of $150,000 for 
the project, but only such sums are to be expended each 
year as may be included in the annual or supplemental 
appropriation bill. 


An Act amending the Act approved April 24, 1911. 

Approved April 17, 1914. 

Laws of New Jersey, 1914, p. 472. 

Permits a change in the route adopted by the original 
act for the waterway between Barnegat bay and Man¬ 
asquan inlet when such change is advisable, or to the best 
interests of the State, and gives the Department of Inland 
Waterways authority to acquire a right of way. 


An Act providing for the development of the inland 
waterways system by deepening the channel of Abse- 
con Inlet by the erection of a jetty or other structure 
and to appropriate $50,000 for this purpose. 

Approved March 8, 1912. 

Laws of New Jersey, 1912, p. 82. 
See amendment approved April 9, 1913. 

This project is conditional upon the city of Atlantic 
City appropriating a like amount to complete the work. 




WATERWAYS OE NEW JERSEY. 


199 


Act amending Act approved March 8, 1912. 

Approved April 9, 1913. 

Laws of New Jersey, 1913, p. 615. 

Permits the work of improving Absecon Inlet to be 
done by a jetty or other structure as originally proposed 
and by dredging. The amendment also eliminates any 
specified depth to be obtained. 




INDEX 


Acts of Legislature (see Laws) Page 

Alexander, James . 51 

Alloways, Tract of land . 30 

Alluvion . 103 

Andriessen, Lawrence . 25 

Anti-Proprietary Party . 21 

Associates of the Jersey Company, The. 24 

Authority of Secretary of War. 115 

Authority of U. S. over waterways. 114 

Barclay, Governor . 50 

Belcher, Governor . 21 

Bergen, Recognition of government of. 24 

Bill in Chancery, Elizabethtown. 21 

Billup, Captain John . 60 

Boundary Lines; 

Between East and West Jersey.32, 48 

Between New Jersey and Delaware. ^ 

Between New Jersey and New York.51, 60 

Between New Jersey and Pennsylvania . 64 

Between Newark and Elizabethtown. 20 

Bridge, Unreasonable obstructions of. 115 

Camden and Amboy R. R. and Trans. Co. 129 

Canals in New Jersey. 121 

Chapman, John . 51 

Citations: 

Arnold vs, Mundy.80, 86 

Bell Daniel, The. 107 

Bell vs. Gough . 85 

Brown vs. State (Morris Canal & Bank. Co.). 92 

Camden & Atlantic Land Co. vs. Lippincott. 103 

Cannon vs. New Orleans. 102 

Carpenter vs. Board of Com. of Minn. 73 

Cummings vs. Chicago. 114 

Erie and Atlantic Basins. 114 

Gilman vs, Philadelphia. iii 

Gough vs. Bell. 78 

Guy vs. Balto. 102 

(201) 





































202 


INDEX. 


Citations—Continued: 

Herman vs. Beef Slough Mfg. Co. io8 

Martin vs. Waddell. 8i 

Ocean City Assn. vs. Shriver. 104 

O’Neil vs. Annett. loi 

Packett Co. vs. St. Louis. 102 

Packett Co. vs. Catlettsburg. 102 

Paine Lumber Co. vs. U. S. 73 

Pea Patch Island Case. 72 

Philadelphia Co. vs. Stimsen. 118 

Pollard’s Lessee vs.• Hagan. iii 

State (Attorney General) vs. American Lucol Co.- 93 

State vs. Mayor and Common Council of Jersey City.. 87 

Stevens vs. Patterson and Newark R. R. 88 

Tuckerton Creek Case. 112 

U. S. vs. Chandler-Dunbar Co. 113 

U. S. vs. City of Moline. 113 

U. S. vs. The Montello._. 108 

U. S. vs. Rio Grande Dam & Navigation Co. no 

Wisconsin vs. Duluth. 113 

Claims to New Jersey, Foundation of. 8 

Clinker Lot Division . 19 

Concessions and Agreements of Lords Proprietors . 13 

Concessions and Agreements of West Jersey.35, 77 

Constitution of New Jersey, First. 13 

Cornbury, Lord, Instructions of. 45 

Courtillon, Jacob . 27 

Cox, Dr. Daniel . 37 , 50 

Delaware, Boundary line between New Jersey and. 68 

Delaware River, Islands in the. 65 

Delaware, Jurisdiction on the.70-72 

Delaware River, Settlement on the. t6 

Delaware and Raritan Canal . 125 

Department of Commerce and Navigation, Laws relating to.. 163 
Department of Commerce and Navigation, Laws relating to.. 195 
Diderich, Hans . 27 

Earliest Canal Legislation in New Jersey. 124 

East and West Jersey, Boundary line between.48-52 

Eastern Boundary Line between New Jersey and New York.. 59 

Eldridge, John . 30 

Elizabethtown Bill in Chancery. 21 

Elizabethtown Grant .17, 18, 19 

Fauconnier, Peter . 27 

Federal authority over navigable waters. 107 








































inde:x. 


203 


Page 

Federal harbor lines . 117 

Fenwick Colony . 30 

Fundamental Constitution of East Jersey.40, 77 

Grants: Origin of . 7 

To Andriessen, Lawrence.25, 26 

To Berry, Captain John. 26 

To Cartaret, Sir George (1674).31, 32 

To Cartaret, Penn, Lawrie, Lucas and Byllinge(i6^) .34, 35 

To Cartaret, Sir George, grandson, (1^0). 39 

To Cartaret, Gov. Phillip and associates. 27 

To Diderick, Hans. 27 

For Elizabethtown Grant.17, 18, 19 

To Hartshorne, Richard. 26 

To Joint Stock Companies. 9 

To Loockermans, Govert . 26 

For Monmouth Tract .21, 22, 23 

• • To Morris, Col. Lewis and associates. 27 

For Newark Patent. 20 

For New Britain Tract. 28 

To Raleigh, Sir Walter. 9 

For Ramapo Tract. 27 

To Sanford, Captain William. 26 

To The Twenty-four Proprietors (1682). 40 

To Verlett, Nicholas . 26 

Grants and Concessions (Lords Proprietors). 77 

Harbor Commission, Law creating. 186 

Harbor Lines .loi, 117 

Hartshorne, Richard.26, 36 

High-water mark. Definition of. 73 

History of grants of lands. 4 

History of State ownership in riparian lands. 7 

Inland Waterway .145-148 

Irish Tenth . 36 

Islands, Status of . 106 

Jones, Sir William, Opinion of. 38 

Keith, George . 50 

Kill van Kull, Boundary on. 24 

Land titles in New Jersey. 7 

Laws relating to Dept, of Commerce and Navigation. 163 

Laws relating to Dept, of Inland Waterway .195-199 

Laws relating to New Jersey Harbor Commission.186-193 










































204 


INDEX. 


Page 

Laws relating to New Jersey Ship Canal Commission.I 9 i-i 93 

Laws relating to Pilot Commission .. I 94 

Laws relating to Riparian Commission (Digest).169-185 

Lawrie, Gawin . 30 

Long Bill . 47 

Loockerman, Govert . 26 

Low Water mark, Definition of. 73 

Lucas, Nicholas . 3^ 

Monmouth Patent .21, 22, 23 

Morris Canal . 132 

Morris Colonial Laws .21, 27 

Navigable Waterways, Federal Control over. 107 

Navigable Waterways, Laws relating to. 91 

Navigable Waterways, State Control over. 149 

Navigability, Test of . 107 

Newark, Grant . 18 

New Barbadoes Tract . 26 

New Britain Tract . 28 

New Jersey, Boundary Line between Delaware and.68-72 

New Jersey, Boundary Line between New York and.51, 53-64 

New Jersey, Boundary Line between Pennsylvania and.64-67 

New Jersey Harbor Commission . 158 

New Jersey, Jurisdiction in waters of the Delaware ..64-67; 70-72 
New Jersey, Jurisdiction in waters of New York Harbor.... 61-63 

New Jersey Ship Canal Commission .142-144 

New York, Boundary Lines between New Jersey and. 51 

New York, Jurisdiction in waters of New York Harbor.61-63 

Nicolls, Governor, Inducements offered by.16, 17 

North Partition Point. 49 

Northern Boundary Line between New York and New Jersey.. 51-59 

Oath of Allegiance. 17 

Pea Patch Island. 72 

Pennsylvania, Boundary Line between New Jersey and.64-67 

Pennsylvania, Jurisdiction in Delaware River.64-67 

Pilot Commission, Laws relating to. 194 

Proprietary Period. 10 

Quintipartit Deed (1676). 39 

Quo Warranto proceedings. 41 





































INDDX. 205 

Page 

Raleigh, Sir Walter. 9 

Ramapo Tract. 27 

Reedy Island . 72 

Riparian Commission .53, 94 

Riparian Grantee, Rights of. 99 

Riparian Lands, Definition of. 74 

Riparian Lands, Rights and Title to. 73 

Royal Commission. 53 

Royal Government. 45 

Sanford, Captain William. 26 

School Fund in relation to riparian lands. 186 

Shooters’ Island.24, 62 

Shore, Definition of . 74 

Shore Line, Definition of. 74 

Shore Owner, Definition of. 74 

State Boundary Lines .53-72 

State Control over Navigable Waters. 149 

Staten Island.24, 60 

Surrender of rights of government. 42 

Test of Navigability. 107 

Title to lands under tide water. 73 

Under Royal Government. 45 

Van Vorst, Ide Cornellisen. 24 

Verlett, Nicholas. 26 

Warner, Edmund. 30 

West Jersey, Boundary line between East and.32, 48 

West Jersey Concessions and Agreements. 35 

West New Jersey Society, The. 38 

Wharf Act. 9 i 

Wharf Rights.loi, 102 

Yorkshire Tenth. 36 












































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BULLETIN 01' Ty-iFOEI-ATION 
"••'E 

THT^ lULANT) V/ATlF'rAI'S COBPCE^TION 


The hegimiing of the inland water transportation facilities now 
Inland Y/aterways Cor],)0ration, is directly traceable to 
v/orld War” emergency^ Lue to unprecedented demands for transportation to 
supply our troops overseas, congestion of the railroads actually existed 
to an alarming degree and an auxiliary transportation agency, a fleet of 
barges, wa.s established to relievo the situation. There is a question as 
to the responsibility for the congestion then existing. Bail proponents 
claim tnat there were plenty of cars in service but that they v/ere ”frozen” 
at the ports because of lack of ocean transportation. Y/ater proponents 
claim that this congestion arose from the failure of the PTOvernment in the 
past to properly complete and utilize its navigable streams so that shipoing 
would not necessarily have been confined to relatively few ports. 

During the War this emergency transportation agency, i. e., a 
hastily gathered together fleet of ill-assorted towboats and barges, was 
operated primarily with but one object in view, to win the War without 
reference to cost. After the ”^ar ail ooats and barges then in existence 
and vvhich had been operated under the Pailroad Administration were turned 
over to the Secretary of War with a mandate to carry out the policy of Con¬ 
fess a.inounced in the Transportation Act of 1920, v</hich was to encourage 
and develop v/ater transportation on our inland streams end lakes and at the 
same time to promote and preserve in full vigor both rail and water trans¬ 
portation. ^ Various duties were prescribed for the Secretary of War by this 
same Act with the object of making this policy effective. Accordingly the 
Secretary of War created the Inland and Coastwise Waterways Service'as a 
separate branch of the War Department to carry out the expres.&^d desire of 
Congress. The InJa^id and Coastwise Waterways Service operated at a loss of 
approximately >000,000.00 a yeur during the time of its existence. The 
reasons for its failure were not hard to find. First of all, it was operat¬ 
ed under such Govtrmnenxal restrictions as to vitiate the purpose of its 
creation. 

By certain laws the Inland and Coastwise Waterways Service was 
required to do certain things and by other laws was prohibited from carry¬ 
ing out its fundamental purpose. Accordingly the people v/ere hesitant to 
place their faith in this unproven exporiment. They refused to take ad¬ 
vantage of the savings offered by this service because there was no as¬ 
surance that Congress would continue to appropriate the necessary funds for 
i-s operation every year. There was no assurance as to how or to whom the 
Government would dispose of this agency if Congress decided to abandon it. 
Consequently it was only natural that shippers should look askance at any 
invitation to abandon a permanent and long established transportation system, 
for it is generally knovm that traffic and freight move only in well-v/orn 
time-proven grooves. ’ 

There was a strong and determined effort at the time the Inland 
and Coastwise Waterways Service was established to get the Government out 
of business. The railroads themselves in the early days of their existence 
had used every means at their disposal to throttle v.ater transportation. 


- 2 - 


That they succeeded is evidenced by the fact that from 1900 to 1917 common 
carriers upon our inland streams were practically nonexistent. After the 
Governmentally operated Inland and Coastwise Waterwrays Service w^as created, 
and had been in operation nearly foar years, there was a strong protest all 
over the country against spending any more money upon an almost universally 
acknowledged failure, From the people of the interior a wave of protest went 
up that they -were being taxed for the benefit of the fortunate few located 
upon our rivers* From the railroads v;ent up the cry that they were being 
unjustly taxed for the creation of a competitive agency primarily destined 
to hurt them. There was a reluctance on the part of Congress to invest fur¬ 
ther in the project which hcv.d nnt only shovm no results but which v;as fur¬ 
ther costing ;|pl ,000,000.00 a year. Congress, and the public, was beginning 
to believe that the h’undreds of millions of dollars already expended to make 
v/aterways navigable was money wasted hecouse there were no private agencies 
taking advantage of them. They also looked with doubt upon a Governmental 
demonstration v/hich continued going into debt every year. In view of the 
ignorance of the public concerning the real facts, this Congressional at¬ 
titude was ooth justifiaole and usiderstandaole. The underlying causes of 
the failure of water transportation had been carefully misstated by the 
persons most interested in destroying it. 

Handicapped by stringent restrictions it was not to be wondered 
at that the Inland and Coastwise Waterways Service proved a business fail¬ 
ure. Nevertheless it justified its existence becavise it determined that 
certain fundamental conditions must exist before our navigable streams could 
be utilised for the benefit of the people at large. It ferreted out and 
brought to light the hidden cavuses of the nonexistence of common carriers 
on our inland v/aterways. 

The prerequisites of successful water transportation by common 
carriers were gradually determined to be as follows; 

1. Navigable streams. This first prerequisite of successful water 
transportation is self-evident. If no common carriers v/ere able to operate 
upon the streams they would be of no value to the country'- as a whole. 

2. Suitable equipment to operate upon these strean.s. Through pro¬ 
cesses of experimentation and gradual evolution the railroads v/eru enabled 
to determine and develop standard equipment. Nnfort’mately there is as yet 
no system of standard depths or widths for our streams and canals. There 
is no question as to the eventual standardization of our main arterial 
waterwa-ys to a navigable depth of nine feet and the developm.ent of their 
tributaries in the order of their importance, and outward from the main 
streams, with channels of either nine feet or six feet. At the present time, 
the Government of the United States is conmitted to a very complete and com¬ 
prehensive system for gradually obtaining the desired standardization of our 
navigable waterways. As a general policy the present administration favors 
modernizing of every part of our waterways which will show economic justifi¬ 
cation in aid of our farmers and industries, building these waterways as one 
would build any other transportation system - that is, by extending its ram¬ 
ifications solidly outward from the main trunk lines. Substantial traffic 

or public service cannot be developed upon a patchwork of disconnected local 


3 


improvements and intermediate segments. Such patchv/ork: has in past years 
been the sink of hundreds of millions of public money. 

In the absence of imi..ediatr standardization of o\ir navigable 
waterways we have been faced with several problems. First, we had to de¬ 
sign a towboat to operate most efficiently upon streams from four to six 
feet deep, one to operate upon streams from six to eight feet, and one to 
operate upoxi streams of eight feet or over. At the present time our barges 
are designed to carry a suitaole cargo upon a six-foot channel and dcuole 
that cargo upon a nine-foot one. To illustrate how this nev" equipment will 
operate, let us suppose that we start up the Lower Mississippi from Few 
Orleans to St. Louis with our barges carrying 2,000 tons apiece. I'/hen we 
reach St. Louis v/e w''Ould drop 1,000 tens shipped to that place and continue 
our tow on the Upper Mississipoi v/ith the same barges carrying a load of 
1,000 tons shipped to St. Paul, for example, with a towboat properly de¬ 
signed to operate on a six-foot channel. This eliminates the necessity of 
transferring cargo from a b....rge designed to operate upon a nine-foot channel 
to a barge designed to operate on e six-foot channel. Ue are justified in 
designing types of tov/boats for different chaniiels because the life of these 
boats will have been long since gone before we achieve the contemplated 
standardization of ou-^ 7/aterwa2'’s. 

3. Suitable Terminals. Local conditions upon each river and each 
channel must determine what the terminal facilities for that particular 
stream must be. In general, our experience has sbown that there are three 
suitable types of terminals. First, the direct lift; second, the conveyor 
t.ype; and third, floating teimirxal with incline. The type of terminal de¬ 
pends upon the character of the stream, commodities to be handled, and 
whether or not there is to be interchange of freight with the railroads at 
the terminal point. 

4. Balanced Freight Upon These Streams. By balanced freight is 
meant the movement of freight both up and dovm stream and the carrying of 
freight of ootii high rnd low revenue. 

5. Interchange of Freight. The railroads could exist and function 
very profitably wflthout \;ater transportation but water transportation, 
benefiting all the people, cannot exist without the cooperation of the 
railroads. If there* is no interchange of freij^ht hetw^een the railroads 
and the ws.ter carriers the inherent cheapness and advantage oi water trans¬ 
portation is limited to the select few located upon the banks of our navig¬ 
able waterways. 

6. An equitable division of revenue between the water carrier and 
the connecting railroads. The n;0st difficult question now confronting 
the Inland Waterways Corporation is the adjustment of rates between the 
railroads and the Barge Line so as to provide an equitaole living revenue 
for both parties. Logically this division of revenue should be determined 
by the two parties involved and based upon the actual service performed. 

There is no ideal method of determining how the resulting revenue of a rail- 
w'ater—rail movement should be distributed amongst the participating carriers. 
The Inland Waterways Corporation believes that the fairest possiole basis 


for determining what constitutes an eq-'.iitable division of revenue for ser¬ 
vice. performed should be a first class rate-pro-rate basis. This basis for 
determining the division of accruing revenue was taken because a first class 
rate is assumed to give all carriers a living revenue and a justifiable pro¬ 
fit for service performed. To illustrate hov/ a first class rate-pro-rate 
basis is used to determine an equitable division of accruing revenue of a 
rail-v/ater-rail movement let us take a hypothetical case. Suppose a ship¬ 
ment is to be made from its origin over P.ailroad "A*’ to the Barge Line and 
from the Barge Line over Bailroad ”3" to its destination, and the first class- 
rate of Pailroad for the distance it carries the shipment is $4.00, and 

the first class water rate for the distance the Barge Line carries the ship¬ 
ment is $2.00, and the first class rail rate of pailroad ”B” for the distance 
it transports the shipment is $3.00, then we would add the total of the first 
class rates of the three participating carriers for the distance the ship¬ 
ment was transported, i. e., Assuming that $6,00 represents the ar¬ 

bitrary figure set by the Interstate Comjr.erce Comjnission as the joint rail- 
water-rail rate for the shipmient, the proportion of this total revenue to 
which Pailroad ”A" is entitled would be d’/oths of 8, and the proportion of 
the total revenue to which the water carrier is entitled v/ould be 2/9ths of 
6, and the proportion of the total revenue to which Pailroad ’’B” is entitled 
would be 3/9ths of 8. However, in a general discussion of the Inland V/ater- 
ways Corporation, this would be beside the point, for the public is only in¬ 
terested in what the savings of an all-water, rail-water, rail-v/ater-rail 
or water-rail-water movement will be over an all-rail movement, and not in 
divisions, other than to see that each participating carrier gets a living 
revenue. 


At the present time, however, this Corporation has interchange 
relations with 162 railroads, including among them the most powerful and 
the most far-sighted. It is the history of transportation that an increase 
of facilities and the cheapening of transportation increase the voluroe of 
traffic. Fortimately in certain cases where shert-sighted railroads refuse 
to extend the adv-antages of joint rail and water transportation to the peo¬ 
ple of the United States there exists a tribunal of law before which the 
facts can be argued. If this trihunal finds that the facts justify such a 
course of action it can force these railroads to extend their lines to meet 
the Barge Line and to compel them to equitably distribute the resulting 
revenue upon the basis of actual service performed. 

At the present time the rate system throughout the United States 
is so technical and so involved that it follows no guiding principle in its 
entiret5'’. The Interstate Commerce Commission does not make a blanket deci¬ 
sion covering the whole frame of rate structure, but, at the request of one 
of the interested parties who believes that the existing rates are unjust 
and unfair, may consider each individual case and wncre such individual 
case is presented for arhitraticn to the Interstate Commerce Commission 
the burden of proof to show that the existing/interchange relations or joint 
rates are unjust shall fall upon the party bringing the complaint. By law 
the Interstate Comimerce Com.mis3ion can force either the railroad or the 
Barge Line or both to extend their lines to meet one another. It has been 
customary, hov/ever, for the Interstate Commerce Commission to require the 
Barge Line to lay dovm a track or tracks from its terminal to the right-of- 
v/ay of the railroad and to require such railroad to put in connecting 



switches and to cooperate v/ith the Barge Line in rail-water and water-rail 
moveiTients and divisions of accruing revenue. 

Accordingly in order to determine whether or not any further 
expenditures upon our inland waterways were justifiable Congress created 
a pioneer experimental agency free from the red tape that so handicapped 
the liiland and Coastwise -waterways Service. This pioneer agency, known as 
tht; Inland Waterways Corporation, was organized like a modern railroad. 

The underlying thought behind its creation was to determine once and for 
all v/hether successful water transportation with its resultant benefits 
and savings to the people at larg<j would be practicable or not. Organized 
as a business agency, endowed by the ITiited States and given the same privi¬ 
leges as any private corporation, including thv. ability to b«rrow money, 
the Inland Waterways Corporation was cast loos*^ to sink or swim by its own 
efforts. Tnat it has sworn lustily is evidenced oy the fact txu t during tne 
five years of its existence it has changed the loss of 1:1,000,000.00 a year 
into an average net income of .182,000.00 a year. The reason this net in¬ 
come is not larger is because the Corpor^.ticn is required by lavj to operate 
upon the Upper Mississippi and Warrior divers where the required conditions 
for successful operation of common carriers arc. not yet present. The es¬ 
tablishment of any successfil business by a tmnsportation system invariably 
results in a loss until the transportation agency own get both feet upon the 
ground. In the case of the Upper Mississippi, the Pederal Barge Line ser¬ 
vice has just been established. The conditions of th<j channel, the lack of 
suitable equipment and terminals hsve to a large extent eaten up the profits 
of the LowoP Mississippi where the six required conditions of success are 
permanently stablishod. On the W^arrior Uiver all freight destined for 
Birmingham is required to go thro-i^>:h one terminal at Birmingspcrt, a small 
town about 10 miles away from Birmingham. The only connection between the 
banks of the 7/arrior “’iv^r and Birmingham, v/hore other railroads compete 
for interchange relations with the Barge Line, is over one railroad that 
was ov/nei by the Ensley Southern up until 1926. This railroad v/as operated 
by the Ensley South.rn at a Ions and it was enabled upon that plea, to the 
Interstate Gcmmerce C'"'ramission, to extr-ct such a large percentage, out of 
all preportien to the actual service performed, of the accruing revenue for 
a joint rail and bargvj haul as to render service over this route a losing 
proposition for the Barge Line. Consequently, operations upon the Warrior 
Fiver were also paid for by the profits of the Lo\./'er Mississippi. In 1926 
the South* rn Fail road claimed that the Ensley South^-rn was a. nonpaying lino, 
threw it into the- hands of a receiver and finally E.sxtl .for its abandonment. 
This was not approved by the Court but it was ordered sold for .vU00,C00.00, 
and it v/as bought on May 1, 1926 by the Warrior Fiver Terminal Company, the 
entire stock of which is owned by the Inland Vr .terwa-'-s Corporation. 

the Warrior Fiv^.r Terminal Company in aii Alabama Corporation, of 
which the Chairman and Executive of the Inland Waterways Corporation is the 
Pre:-id.jnt, and is the only connection between the Warrior and the interior 
of Alabama. Since its purchase in 1926 this railroad has been reorganized, 
rebuilt and oninrgod until in 1928 it snowed a net operating income of 
(.30,88 6.98 in excess of six percent on the varl le of the property of the 
Warrior Fiver Terminal Company. It is extr-^^mely gratifying to have the 
•'..fficiency of the Inland Waterways Corpoiation demonstrated to such a de¬ 
cree in the successful operation of a railro:.d abandoned as nonpaying by 


- 6 - 

a large railroad. In the past few years the losses upon the Warrior "River 
have been so reduced that it is confidently anticipated in the near future 
that this river mil be placed upon a paying be sis. 


OViTned by the people of the United States and govorn^d by the 
Secretary of War, v/ith a permanent ezecutive, this Corporation is extend¬ 
ing to all the people of tho United States the benefit of cheaper water 
transportation as well as rvjviving common carriers upon our lakes and 
streams by ostablishing favorable conditions for the investment of private 
capital. Originally created and capitalized at $0,000,000.00 in 1924 the 
Inland Weiterways Corporation was expanded in 1928 with an additional capital¬ 
ization of $10,000,000.00 appropriated thst year. 

The underlying principle upon which this Corporation operates is 
th.^t every man in the United States who has been taxed to make our inland 
waterways navigable is entitled to thu same benefit snd the same saving in 
their use whether he bo located on the btuiks of the streams or in the heart 
of the interior. To illustrate, suppose that the all-rail rate from St. 

Louis to Lew Orleans v;ero $5.00, -.nd the all-water rate bet\'een the same 
tv;o points w^re .^4.00, h.'e saving the rr.an locatc^d at St. Louis would make 
while usin- the Mississippi Liver to ship his goods to Uow Orlc-ans would bo 
^lI.OO. Suppose a man located at Springfield, an interior town desires to 
ship from Springfield to Lew Orleaiis c«nd the all-rail r-te from Springfield 
to Uew Orleans is $6.00. The Inland v.u.terways Corporation by arrringement 
with the railroads would estaclish a joint rail-water ro-iite, rail frdm 
Springfield to St. Louis, water from St. Louis to Few Orlo-ans, of (5.00, 
this rate being fixed by deducting from the .all-rail rate botw^en Spring- 
field and NeV(/ Orleans the savings of the vmter route over the rail route 
betw^;;en St. Louis and New Orleans, which is th^- dist.'ruice the v/ater route 
is used. Thus it is evident that altho^agh the mail at Springfield is not 
located on the river he neverthciloss gets the same savings in cents per 
hundred pounds for the distance the river is used as the man located at Few 
Orleans. 

When this principle w.as first enunciated the people located on 
the livers protested that they were baling robbed of the advantages of their 
location. They desired to hold cheape'r river transportation as a club over 
the heads of the railroads paralleling the river rcut:..s in order to secure 
lower rrtes. The railroads themselves prutested that water tninsportation 
would teke the freight aw^.y from them. The inherent jus Lice of the princi¬ 
ple enunciated by this Corporation finally made it self-evident and, para¬ 
doxical c,s it may seem, water transportation hurts the railroads to help 
them. To illustrate, what tne v/ater carriers take aw'ay from the railroads 
in freight they more than give br.ck in finished cor.imodities and increased 
demands. To bo specific, the Peimsiivania Puilroad in competition with 
water transportation upon the Monongahela Piver has had to expand its facili¬ 
ties paralleling the river four times. The reasons for this were as follow^s; 
First, manufacturers settled in Pitts ourgh because rav/ materials could be 
received and distriuuted cheaper than some place else. As Pittsburgh grow 
the people demanded necessitios, comforts and luxuries in the order nf.med, 
and the' raw materials shipped into Pittsburgh taxed the capacity of the riv¬ 
er and the distribution of the finished products and the demands of the in¬ 
creased population necossitated several expeonsions of the railroads. 


7 


To bo brief, the Inland \fatcrways Corporation extends the bene¬ 
fits of cheaper v^ater transportation to every one including the railroads. 
The shippers effect a saving: in their distribntion cost which enables them 
to pay the farmers a higher price forthir-and which enaoles the 
latter to distribute their products in tim^s of depression. The people of 
tne United States are receiving reel tanuiole benefits from the money they 
have been taxed to make water.vays navigable and even tno rcoAlroads receive 
m’lcn fre.'.ght vuicn won.ld not othe'^u'Ase move if the cost of traB.sportation 
and distribution v;ere an^" higncr. 


It is contei.ded by oppoiients of v/otor transportation that there 
is sufiicient rail transportrticn available to take care of the growing 
needs of our country. However, past experience nas shown us t^iat every 
10 years the transportation needo of ihis country have practically doubled. 
To meet the increased demands IS years hence would cost thts railroads ten 
billion dollars V The total amount invested in wsAer transportation is 
slightly less than on<^ billion dollars. The increased expenses of a rail¬ 
road. expansion \i/OUj.d of necessity have to oe pp.id for by the public through 
the medi'iim of increased cost of transportation and freight, Tiie Inland 
\/aterv/ay3 Corporation freely admits that if th.^re is not sufficient de¬ 
mands for transporta cion to iu'’nish both railroodn> a]id wuterways with a 
living revenue then the timio has not yet come for the development of water 
transportation in tha b locality, Ko u'cverp experience ha,s proven that the 
de-mand for tranepcrba.tion is g...'eacer than the facilities availabli;. and thR,t 
this demand is continually increasing. i^emcmDcr it is extremely difiicult 


to servo in a dual CvO.pacity. 


1.. e, 


>c enecrourage and promote the develop¬ 


ment of wsiter tiauvoportation v.uth its resulting ducrouse in shipping costs 
and b-sneiits to tne p'lblic and at th same time to preserve in full vigor 
both iv.il and w...A.or transportation- ’^'^h.at this Corporation has succeeded 
in both roles ii, oncoming more evide.it day by day. 


For the general information of the public at large and in the 
belief that they will be interested in how v/^^t-^'r transportation by the 
Federal Jarge Line miuy o-i inaugurated upon one of cur in] and streams, the 
following inforr';ation is submitted: They must first get Congress to 
authorize a survey of thc^ir project before any riiOney or time can be devoted 
to the creation or mairterance cf any particui'r navigable channel. This 


survey covers the ouestion of oracticability ,and pot..;ntial to.inage and when 
such survey is comoleted by the Corps of Engineers it is submitted to Con¬ 


gress vuth a recommendation as to whether the pro.ic-ct snouxd oe undertaken. 
If Congress approves iho recommendation of the Chitf cf Inv;ineers and the 
Secretary of -far that such work should be undertaken, the pioposed ijuvler- 
taking then becomes one of the ’’Adopted Projects” of the Government and is 


executed as funds occome available from the ge:ier;A appropriation for rivers 
and hs.rbors. Uhen the Chief of Engineers r...pOxts to the Secretary of Xai' 
that any tributaigy or connecting waterway of the iviississippi Fiver, not in¬ 
cluding the Chio Fiver, is navigable or will have been made navigable within 
two years, the Secretary of War is authorized to have a survey made of this 
waterway to determine thv. practicability of barge line service thereon, to 
determine the type cf equipment, freight, traf-^ic and terminals that will 
be required and the ;iraount of business that may b,. expected if barge line 
service is plac.d upon that waterway. In tnis survey will be included the 
deterrnination of what .joint rail and water connections are advisable and 


- 8 - 


and vi/hat tariffs rnd distribution of revenue ar. necessary, lii/hen this 
channel is suitable for th.. safe a,nd efiicient operation of the water 
carrier and vdien the traffic sur/ey indicates that the establishment of 
the barge line upon this waterway is in the public interest, the Secre- 
ta,ry of h-ar is authorized to oegin such barge line service, as soon as the 
Corporation has the necessary equipment and facilities to op^^rate thereon. 
Note particularly tnat ref nences arc. made to a connecting waterway or 
tributary of the I'ississippi Piv^r except the Chic Piver, which excludes 
O'Pc.rations upon any tributary of th.^ Chio, such as the Tennessee. This 
particular refcreiice was made because under the present law the Inland 
’vTaterways Corporation is prohibited from operating upon the Ohio Piver or 
c(,ny inland wato'rway that does iiot connect VwUth or is not a tributary of 
the Mississippi. 


Owing to the limited sphere of its ractivities the Inland Water¬ 
ways Corporation can not possibly extend to all of the people its full 
benefits. Through public demand, howev-.r, separ.'vte bills extending the 
sphere oi its operations have been introduced in Congress, and the ques¬ 
tion of such extensions will be there determined. 

It is deemed adviscable at this time to inform the public as to 
the distinction and the line of demarcation between the Corps of Engineers 
and the Inland Watc-rwrys Corporation. To ho brief, the Corps of Engineers 
io charged with the construction and maintenance of our rivers and harbors; 
the Inland Waterv^^ays Corporation with all operations of the Federal Barge 
Lino thereon. The two provinces do not in an,)avay over-lap. 


Tlie organization of the liiland Y/atorways Corporation is as fol¬ 
lows: The stockholders of the organization are the people of the United 

States. The incorporator and governor thereof is xhe Secretary of V/ar 
who openates this Corporation through a permanent «jfficial knov/n as the 
Chairman of the Board of the Inland Waterways Corporation and Executive 
oi the Corooration, The Advisory Board, consisting of six prominent bus¬ 
iness men s.,lectel from sections of the country thro•|.^gh which the Inland 
V/aterways Corporation operates, are, as their name indicates, advisory 
only. They rrurce such recoi7imerid-,.tions to the Chairman '.nd to the Secretary 
of W^ar as they deem advisable for tho best interests of the country. Their 
recommendations, however, are not required to be accepted. In addition to 
the Chairman and Executive there is an Assistant to the Chairman and a Gen¬ 
eral Counsel, Their duties are as their names indicate. Then there is a 
Secretary and Treasurer under v/hom oaorate a Comptroll’i-r and an Assistant 
Treasurer. 


There are four operating organizations of this Corporetion, 
the Upper Mississippi, the Low.^r laississippi, the ’Warrior, (each of wnicn 
nas its ovm Operating Ivunager) and the Warrior "^iver Terminal Con.pany, 
under a General Ifenager. This latter is an Alabama Corporation, with a 
President, Vice President and Board of Pirectors. 

The Secretary and Treasu't'c.'r of the Inland Waterv/ays Corporation 
performs all his duties under the direction and supervision of the Chair¬ 
man. He is the acco-ontable officer for all funds and securities of the 
Corporation, it is his duty to collect, receive and hold all money, bonds. 


- 9 - 


certificates of stock, etc. Ho has the power to affix and attest the seal 
of the Corporation wherever it is required. He is also responsible for th^ 
general accounting policy of the Corporation. The Operating fenager of each 
Division coordinates the activities of all Departments in his Division. Ho 
is ralso charged with the operation, maintenance, and repair of termina^-s, 
and all transportation facilities except those properly coming under the 
duties of the Chief Engineer, In addition, he supervises freight movements 
;.,nd tow schedules, employs, discharges, and superintends boat personnel. 

The Traffic Manager is in charge of the commercial relations between the 
services operated by the Inl?nd Waterways Corporation and other carriers, 
of the fixing of rates can! divisions, and the routing of traffic. He also 
prepares the data for the submission of co.ses to the Interstate Commerce Com¬ 
mission by the General Counsel. 

The Traffic lianager in Charge of Solicitation is in charge of the 
solicitation of business for the Corporation and of the supervision of gen¬ 
eral agents, foreign agents 'Uid commercial agents. The Chief Engineer is 
charged with the preparation of designs, plans, specifications and inspec¬ 
tion of floating equipment and terminals the proposed construction of which 
is undertaken by the Inland v7c.terv/ays Corporation or any of its subsidiaries, 
also with maintenance and ropt.ir of floating equipment. He confers with ait- 
side agencies engaged in the construction of any equipment desi^oied for use 
by the Inland Waterways Corporation. Tho General Purchasing Agent, as his 
name indicates, coordinates all purchases made by the Corporation. The Com¬ 
ptroller accounts to the Secret.iry and Ireasurer for all income and disburse¬ 
ments pertaining to the divisions operated by the Corporation. He operates 
under tho Secretary c.nd Treasurer and is' responsible for tho correctness of 
all operating accounts. The Eadio Gupurvisor and the Board of Directors 
for the Warrior Diver Terminal Company are as their names indicate. Decent¬ 
ly, there has been add id an Industrial Kelaticns I^anagor v/hose duties are to 
gain and keep contact oetween the various industries and the Corporation and 
to keep informed of all proposed future shipments. In general, he is our 
contact man. 


Issued isy tho Inland Waterways Corporation. 






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